Employment Equality Bill, 1997 [Seanad]: Committee Stage (Resumed).
SECTION 12.
I move amendment No. 21:
In page 17, subsection (2), line 38, after "exclusively" to insert "or primarily".
There may be a loophole in regard to vocational training. The definition basically covers any system of instruction, etc., which may be considered to be exclusively concerned with training for such an activity. The words "or primarily" should be included because in some cases the activity may not be exclusively concerned with training, but may be primarily concerned with it. This could be used as a loophole so that people in training would not be covered under the legislation. It might be argued by whoever tried to perpetrate the discrimination that the people were not exclusively engaged in training.
The definition of "vocational training" in the Bill is based on that contained in section 12(2) of the Employment Equality Act, 1997. Any broadening of this definition would result in an extension of the scope of the Bill to courses that are more in the nature of education than vocational training. The Equal Status Bill will deal with discrimination in regard to provision of goods and services and it is in that arena rather than this that provision for educational and training courses other than those solely geared to vocational training will fall. It is intended to introduce equal status legislation later this year which will prohibit discrimination on the same nine grounds specified in this Bill in regard to the provisions of goods, facilities and services, including education. On that basis, I do not consider it necessary or appropriate to extend the definition of "vocational training".
I thank the Minister of State for her reply and accept that the equal status legislation will cover other areas of education. Will it be ensured in that legislation people will not fall between both? There could be confusion over the definition as to whether a person was engaged in vocational training or education.
Amendment, by leave, withdrawn.
Sections 12 and 13 agreed to.
SECTION 14.
I move amendment No. 22:
In page 19, line 1, after "who" to insert "does or".
This is a response to the Supreme Court judgment which stated it was strange and anomalous that a person who attempts to procure another person to do anything is guilty of an offence, but if the person does it, he or she is not considered guilty of an offence. It is strange that if one gets another individual to do something, one may be guilty but if one does it, one may not be. Why is that?
In general the Bill provides civil law protection for compensation to individuals in regard to discrimination in employment. However, it is not possible under the terms of the Bill to take a case on grounds of discrimination against a person at one remove from the act of discrimination. Therefore, under section 14 those who procure or attempt to procure anything constituting discrimination or victimisation would be free to engage in such activities without fear of being held accountable. While the Bill generally provides a civil remedy in cases of discrimination, where such a remedy does not recommend itself for obvious practical reasons an alternative penalty - in this case provision of a criminal offence - is provided.
It is more logical that similar justice be meted out whether one gets an individual to carry out an act or does it oneself. This was also debated in the Seanad and a similar response was received. I hope the Minister of State will examine it again before Report Stage.
Amendment, by leave, withdrawn.
Sections 14 and 15 agreed to.
SECTION 16.
Amendments Nos. 23a, No. 1 to amendment 23a, 65 and 66 are related to amendment No. 23. Amendments 23a, 25a and 60a form a composite proposal. Amendments Nos. 24 and 25 are alternatives to amendment No. 23a and amendments Nos. 61, 62, 63 and 64 are alternatives to amendment No. 60a. They may all be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 23:
In page 19, between lines 26 and 27, to insert the following subsection:
"(1) For the purposes of the Act an employer shall do all that is reasonable to accommodate the needs of a person with a disability. A person with a disability shall not be regarded otherwise than as fully competent to undertake any duties, if with the benefit of reasonable accommodation that person would be so competent.".
This deals with the major issue of concern to all of us. We are endeavouring to ensure people with disabilities will be properly protected. As the Bill stood before Committee Stage, it was useless to those with disabilities and may have had a negative effect in terms of their rights in the workplace. It was drafted in the context of approximately 80 per cent of them being unemployed. If we cannot provide measures to rectify that and improve the possibility of employment for people with disabilities, it will be a waste of time and have a negative effect on their lives.
It is important to improve sections 16 and 35. All of us were surprised by the interpretation of the Supreme Court, particularly in the context of other legislation which includes an obligation on the employer to incur costs in the workplace. For example, the 1989 Directive on the Minimum Safety and Health Requirements for the Workplace implemented by the Safety, Health and Welfare at Work General Application Regulation, 1993, made pursuant to the Safety, Health and Welfare at Work Act, 1989 states that the workplace must be organised to take account of handicapped workers if necessary; and that this decision applies, in particular, to the doors, passageways, staircases, showers, washbasins, lavatories and work stations used or occupied directly by handicapped persons. The term "handicapped person" was used at that time; it is not a term which we would use now.
There is other legislation involved. Even the equal pay legislation would have obliged employers to make changes which would have cost them money. Therefore, we are all disappointed with the interpretation given. We are particularly concerned at the term "nominal" and that the legislation will be improved so that there is a definition of "nominal" which does not exclude the employer from any responsibility. Senator Norris made the point in the Seanad that in a certain judgment one penny was considered nominal in the case of a certain individual who received an award, so it is important that we are able to define nominal as something more than one penny.
I tabled an amendment to amendment No. 23a, which is in the name of the Minister, in order to oblige the employer to use existing grants for the adaptation of the workplace. The workplace adaptation grant can be a maximum of £5,000. We are aware from research in the US that a significant number of changes do not cost anything. The majority of changes in the US cost less than $500 in 70 per cent of cases under US legislation and only 5 per cent of them cost more than $5,000. Effectively, if the employer is obliged to use the existing grants provided under legislation, then he or she should be able to employ a disabled worker without incurring any great cost.
I am glad the Minister has managed to satisfy some of our concerns. However, the Bill would be greatly strengthened if my amendment to amendment No. 23a was accepted. It would ensure that an employer would be obliged to use the grants to employ a disabled worker.
We, as legislators, are obliged to ensure that this legislation works properly for the people it is designed to protect. There is obviously a number of amendments but we must agree some wording at some stage. My amendment to amendment No. 23a is important in closing any loopholes which might exist for any employer who might want to avoid a duty to employ a person with a disability and might want to get out of any obligations.
One of the key questions which arose after the Supreme Court judgment was: what kind of legislation would keep within the terms of the judgment and at the same time provide optimum support for the disabled? That is the task the Minister was given.
The first Bill that went through the Seanad and came to the Dáil, did not meet that task. The Minister gave a commitment in the earlier Stages to look at it again. I suppose it is a validation of the Committee Stages of the Dáil and Seanad that she has come up with a new wording which we will discuss.
One of the things we do not want to do is establish a hierarchy between people with various disabilities. I believe that existed in this Bill. A real worry among the groups representing the disabled and obviously among disabled people was that the Bill did not give them enough protection. It is interesting to note that property rights have been found to have greater authority in the Constitution than individual human rights. I said in the Dáil that as the new Millennium approaches it is time to move on from the protection of land to the protection of people in the Constitution. I hope in this Bill we can provide more protection for people who are vulnerable.
There are still huge attitudinal problems with employing people with disabilities. It is interesting to read what Senator Harkin, an expert from the US, had to say on disability. It is relevant to this discussion. He felt that the Supreme Court decision could not be more wrong. He also stated that the US experience had shown that the cost to society and to employers of accommodating people with disabilities was more than offset by the gains. It is fascinating that since the legislation was strengthened in the US, more than 800,000 more people with severe disabilities have entered the workforce, an increase of 27 per cent. The costs involved were not high. There is a fear among employers that the costs will be extremely high and it is widespread although the evidence seems to suggest that the costs are not high and the vast major of adaptations are not expensive. It is an attitude, but the research seems to show that it is not the reality.
To come to the amendments, my worry is the meaning of "nominal cost" and I ask the Minister to explain it. Who decides nominal cost? Who adjudicates on this? How does the Minister see this developing? Can employers use this still, given the Minister's amendments, as a way out of providing adaptation and aids? Does it take into account the existing State grants? I tabled amendments stating that employers must take into account and use the State grants? Is nominal cost inclusive or exclusive of an employer using those grants which exist already? It is important at this stage of the debate that we clarify exactly what is meant by that.
It could be argued in some cases, however, that the cost would be more than nominal. We could not have accepted the Bill as drafted because nominal cost is not defined. It is a vague concept and it is potentially limiting. At what point does a cost become other than nominal? Given the sort of fears of which I spoke with regard to the costs of adapting to accommodate disability, "nominal cost" could be used as a loophole.
This Bill includes people with disability in equality legislation for the first time. We are all anxious to see it on the Statute Book this year as soon as possible. Obviously, we want to see that there is maximum protection. One of my worries is that if the Minister wants to introduce new disability legislation and if we do not extend the provision in this Bill, that will be limiting in terms of the next Bill and will be something of a precedent. It is important that the Supreme Court judgment is interpreted by us, as legislators, in as wide a way as possible, which gives the maximum protection to people with disabilities and in a way which does not create a hierarchy of protection between the different groups addressed in the Bill.
I welcome the introduction by the Minister of new amendments. I want her to address the issues I raised about nominal cost and who decides. I know we will wait for case law to develop on this, but what reassurance can the Minister give that the amendments will address these worries?
I support Deputy O'Sullivan's amendment to amendment No. 23a. It builds in more protection by insisting that in considering the reasonableness of the refusal or failure of an employer to provide the special treatment or facilities, regard should be had to all grants, special services, facilities, assistance and tax incentives available to that employer in respect of such provision. I am interested in the Minister's response to that amendment which would strengthen the protection which is available.
We want to arrive at the best possible wording here. There are a number of amendments. One of my amendments states that appeals should go back to the Minister if employers make them. I ask the Minister to respond to that amendment also.
As we are getting through a lot of legislation I will not repeat what has been said. However, unless the strongest, most positive terms are used in the legislation there will be a reluctance on the part of employers to take a positive stance. The Employment Equality Act caused hysteria in some quarters when introduced. An indication of the change in attitude which can result from positive legislation was a time limit within which it was not allowed or accepted that a lack of facilities would deny the right of women and men to be employed together. In traditionally male areas where there were no facilities for women a deadline was introduced by which time adaptations had to be made otherwise there would be prosecutions under the legislation. This worked extraordinarily well. We can see how attitudes and fears expressed at the time have proved unfounded.
Deputy O'Sullivan pointed out how well legislation on the employment of the disabled has worked in America as an advantage rather than a disadvantage. We must make the legislation positive not only to encourage but to direct employers to use it.
We also have a difficulty with language. The use of the word "nominal" usually indicates the least rather than the most. Employers could claim that nominal costs could be small costs. This could be a loophole. We need to see how this can be aggregated so that the cost does not become the stumbling block.
Deputy Fitzgerald made a relevant point with regard to the Supreme Court judgment and the interpretation of the Constitution. We made a very positive decision to identify the Constitution as a support to people rather than land in last Friday's referendum. We should use the same positive endorsement that it is people rather a territory that matter. This is how the Supreme Court interpreted the Constitution. We have an opening which allows us to do so.
I thank Deputies for welcoming the changes. Before I go through the explanation I wish to recognise all those who have worked hard to bring this Bill to this stage. A lot of pressure came from the Department and the Government to do more with this section. We could not do any more at the Seanad stage as we did not have the legal clearance do so on Second Stage. We now have that clearance because of the hard work of those in the Department, the Attorney General's office and the legal team. We have to operate in the knowledge that we do not need another unconstitutional Bill. We had to be certain that we had the correct legal clearance.
I also thank the Irish Council for People with Disabilities which was very helpful to me. We had many meetings. I thank too the ICTU which met with me, put forward various suggestions and sent letters on the changes we were making. This was helpful to the debate and we should recognise those who were helpful to us.
Following the debate in the Seanad and on Second Stage in the House, I undertook to examine the question of providing specifically for a reasonable accommodation for people with disabilities in the context of the Bill. Following this undertaking I arranged for a full review of the text of the Bill in so far as it relates to the provisions of special treatment and facilities. Arising from that review I have been advised that amendments along the lines of Government amendments Nos. 23a, 25a and 60a would proveconstitutionally viable. That is the importantpoint.
Amendment No. 23a proposes the replacement of section 16(3) with a new provision. The new section 16(3) will oblige the Director of Equality Investigations to take account, in the context of proceedings under the Bill, of whether an employer has made a reasonable accommodation where such is needed by the employee in order to do the job effectively. In other words, any case seeking redress for discrimination on grounds of disability must be evaluated, not just by reference to section 16(1) but also by reference to section 16(3).
Section 16(1) provides a defence to an employer in a discrimination case in circumstances where the complainant is unable or unwilling to undertake the duties attaching to the position. The new section 16(3) qualifies section 16(1) by providing that an employer cannot invoke the protection of section 16(1) by pleading in the case of a person with disability that the person is incapable of doing the work if that person would be capable of doing the work with the assistance of special treatment or facilities.
Amendment No. 25a broadens the scope of the obligation to provide reasonable accommodation in section 16(3) to cover employment agencies, providers of vocational training and regulatory bodies. Amendment 60a is a consequential amendment to delete the now redundant section 35(4).
To set the amendments into context I state again that the legislation is an anti-discrimination measure. The primary obligation which the Bill places on employers is an obligation not to discriminate against a person on the disability ground as well as the eight other grounds provided for in section 6. Every person seeking redress under the Bill, whether on the disability ground or any other ground, must show that he or she has been afforded treatment that is less favourable than that which is, has been or would be afforded to another person on one of the discriminatory grounds.
In considering a case on the disability ground the Bill establishes the right of a person with a disability to be placed on a level playing field with a comparator by being given special treatment and facilities. Once account has been taken of this obligation it is a matter for the employer to select on grounds of merit and suitability as between the number of competent and capable candidates available to him or her.
The treatment of these matters in the Bill as drafted gave rise to considerable dissatisfaction because of a belief in some quarters that the principle of providing special treatment and facilities was not sufficiently clearly drawn. The Government's amendments seek to address these criticisms by replacing the existing provisions with the new provisions which have been drafted to provide a clearer and, hopefully, a more acceptable approach to the matter.
I know that even with these amendments there are those who will legitimately hold the view that the Bill does not go far enough in dealing with the employment rights of people with disabilities. There are limitations in its scope. It applies only to people with a disability who, with a reasonable accommodation or without it, are fully competent, capable and available to work. In addition, where special treatment or facilities are required under the Bill, that provision is necessarily limited by cost considerations.
However, the Bill is an important initial step in ensuring greater access to employment for people with disability. It is one part of a package of measures to which the Government is committed which is targeted towards improving the position of people with disabilities. Work is ongoing with regard to the Commission on the Status of People with Disabilities, the task force report, the plan of action, the National Disability Authority and the disabilities Bill which will follow. This is a step along the route.
Deputy O'Sullivan is seeking to amend amendment No. 23a by the introduction of a new paragraph (d) which provides that in considering the reasonableness of the refusal or failure to provide special treatment or facilities, regard shall be had to all grants, special services, facilities, assistance and tax incentives available to that employer. The Bill provides that an employer must make reasonable accommodation for an employee with a disability if that person would be capable of doing the job effectively with the assistance of special treatment or facilities, unless the provision of those special treatment of facilities would give rise to a cost other than a nominal cost to the employer. It is implicit in section 16(3) that in determining whether the provision of special treatment or facilities gives rise to a cost to the employer, State supports available to the employer will be taken into account. It is also implicit that other supports from, perhaps, voluntary services will also be taken into account.
This is an important point and I thank Deputies for raising it. When we talk about a nominal cost to the employer it is important that we identify what we are talking about, that is, a nominal cost to the employer as distinct to the nominal cost of an adaptation. It is not the cost of the adaptation which is at issue; it is the cost to the employer over and above the grants available. That is an important point upon which Members have sought clarity.
It is inappropriate in the context of an anti-discrimination measure such as this Bill to put on a statutory basis requirements relating to the gamut of State aid. Such arrangements might be established in a disabilities Bill where the emphasis would be on positive action for people with disabilities generally, not just those who come within the scope of this Bill. The basic difficulty is that the Supreme Court held that the Equality Employment Bill, 1996, failed to strike an acceptable constitutional balance between the principles of social justice and the property rights of the employers. This judgment raises profound issues, both legally and politically, about the scope of legislators to deal with this socially important concept. We all wish to see legislation on the Statute Book for the first time prohibiting discrimination in employment on the grounds of disability. To achieve this, we must objectively accept the judgment of the Supreme Court, unpalatable as some of the implications of that judgment may be.
It is important we remember that we are working on a Bill found to be unconstitutional and that we are also working on anti-discrimination legislation. There were concerns about aspects of the Bill before it was submitted to the Supreme Court and we have dealt with those issues today. As regards nominal cost, our understanding is that it is the nominal cost to the employer after he or she takes into consideration the grants available. Some of the amendments tabled by Deputies seek to substitute "significantly increased costs" for "nominal cost". The word "nominal" has caused concern on the part of those involved with the issue of the employment of people with disabilities. It is worth noting that "nominal" may not be the same for every employer or enterprise and the term may be interpreted in a relative sense. What is a nominal cost for a large enterprise employing thousands of people will not be the same as that for a small business with two or three employees. The nominal cost is taken into consideration only after available grant aid or support is taken into account. After that, the nominal cost will still be different for a big employer than it is for a small employer.
I thank the Minister of State for her explanation and I am pleased she has defined the term "nominal costs". It is important there is an explanation of what the Government believes the term to mean. It is true that nominal cost may not be the same for a smaller employer as for a bigger employer.
I wish to pursue the issues raised by my amendment No. 1 to the Minister of State's amendment No. 23a, particularly concerning subsection (3)(c) in her amendment and the issue of nominal cost to the employer. I again thank the Minister for her explanation that it relates to the cost to the employer rather than the cost in itself. I am still concerned that there might be a loophole for an employer to say it is his or her right not to apply for State grants and not to use what is available to them. I am unsure why there is a problem accepting my amendment No. 1 to amendment No. 23a in that regard. I am concerned that there is still a possibility that an employer would not be obliged to apply for the grants available and that is why I tabled my amendment. I appreciate the changes which have been made but I still believe there is a possibility that an employer could resist applying for the grants available to avoid having to go to the bother of facilitating a disabled worker. We would be failing in our duty if we did not eliminate that loophole.
I thank the Minister of State for her response. Is there a timescale for the introduction of disability legislation? When does she hope to introduce it? This is, as the Minister of State rightly said, the first time legislation has dealt with disabilities. It is important to build on this first step and develop more proactive employment strategies to deal with the problems which I outlined.
Is it the Minister of State's legal advice that the phrase "nominal cost" must be used in the legislation? I am still worried about the interpretation. Given that there are those who are not motivated to do anything in the area or are simply resistant, the fact that the phrase "nominal cost" is still in the amendment is worrying.
Is there any statutory obligation on employers to use grants available or is it voluntary? I am unclear on that issue.
I wish to pursue the issue of nominal cost with the Minister of State. It is probably fair to assume that the definition of "nominal cost" will eventually be determined in the courts. What advice or information does the Minister of State have from the Attorney General relating to how the courts, if they have addressed the issue, interpret the term "nominal cost" or "nominal charges"? The concept of nominal is one I expect has been dealt with in the courts where, for example, issues would have arisen relating to agreements providing for nominal charges. I expect the term "nominal" is one the courts have addressed at some point and that the Attorney General would have advised the Minister of State as to how they handled or dealt with such cases. I accept it is the Minister of State's intention that the cost would be nominal to the employer, that it would take account of any grants payable and that the term may differ for employers depending on their size. We must anticipate that, at the end of the day, the term "nominal" is one which will exercise the courts. I would like to know the legal opinion available to the Government as to how the term is considered by the courts and what has been the experience where the use of the term has been the key issue in cases before them.
I support Deputy O'Sullivan's amendment because, while the Minister of State's amendment is welcome in that it provides that an employer shall do all that is reasonable to accommodate the needs of a person, the employer's interpretation of "reasonable" might differ radically from our interpretation. Deputy O'Sullivan's amendment strengthens the legislation and removes any ambiguity by stating that the reasonableness cannot be an excuse for failure to provide special treatment, taking into consideration that there will be grants for special services or facilities. Is there a statutory obligation on the employer to take up such grants? If not, it could become a loophole and Deputy O'Sullivan's amendment seeks to address that. I hope the Minister accepts the amendment.
It is important to clarify these points. If a person with a disability believes that an employer is not being reasonable or is failing to take on board the work adaptation grant of £5,000 available from the NRB, that person has been discriminated against and can bring an appeal to the director of equality investigations, which is provided for in the Bill. The director will establish what is reasonable in that context.
It is our understanding in putting forward this legislation that the cost will be a nominal cost to the employer after taking into consideration all the grants that are available from various agencies. The director will adjudicate on whether the employer was reasonable and whether he or she took into account the supports available.
Frequently, case law is informed by ministerial utterances on the various Stages of debate on a Bill, in terms of the policy behind the legislation. That is why we have made our policy clear on all Stages of this Bill. There is no doubt about what we understand to be nominal cost in this context. It is the nominal cost to the employer, not the nominal cost of the actual adaptation to take place because adaptations are different. They can range from installing a ramp to access a building to adapting the computer facilities to cater for certain difficulties. The nominal cost does not relate to the cost of the adaptation but to the cost to the employer over and above the grants available from the State, the voluntary sector and so forth.
Deputy Fitzgerald asked about the timescale for the disabilities Bill. It is our hope that the Employment Equality Bill and the Parental Leave Bill, the legislation due to go through the Oireachtas in this session, will be cleared by the summer recess. We will then proceed to the next Bill, the Equal Status Bill. The Supreme Court was unhappy last year that both the Employment Equality Bill and the Equal Status Bill were passed by the Oireachtas at the same time. Both were thereby found to be unconstitutional at the same time. Our decision was to deal with the Employment Equality Bill first and after its enactment to deal with the Equal Status Bill. After the enactment of the latter, we will proceed to the positive action measure sought by the Deputy.
This is an anti-discrimination measure in the employment sector while the later legislation, the Equal Status Bill, is a positive action measure. The timescale for the later legislation depends on the passage of this legislation through the Oireachtas and whether it will be found to be constitutional. Members are aware what happened in the Supreme Court a year ago when the issue of property rights and the cost of the legislation for the property owner arose. What is at issue in this legislation is whether we include the term "nominal cost" or "no cost" in order to render it constitutional. I believe "nominal cost" is preferable to "no cost".
We wish to ensure it is understood that "nominal cost" has a wider meaning than "no cost" because nominal cost has a different application depending on the size of the company. The director of equality investigations will adjudicate on that when a person appeals a case to him or her. After consideration of all grants and supports available, the person with a disability might still find that the employer was not fulfilling his or her obligation with regard to nominal cost because it is a large company. It is important then that such a case is appealed to the Director of Equality Investigations and adjudicated upon.
Deputy Gilmore asked about case law on nominal cost and so forth. Our concern was that we only had two choices, either "no cost" or "nominal cost". The latter was by far the better term and that is why it is included in the Bill.
The other important question is the statutory obligation with regard to the use of grants. That arises later in the positive action measure, the disabilities Bill. The legislation before the Committee is an anti-discrimination measure while the disabilities Bill must include all positive action measures. After anti-discrimination legislation on the employment ground is passed and found to be constitutional and an Equal Status Bill is passed and found to be constitutional, we can then address the further positive action measures that can be legislated on and found to be constitutional. It must be done in that sequence because of what happened a year ago.
Does that mean there is still no obligation on employers to use the grants?
The statutory obligation to use the grants will be dealt with in the disabilities Bill. The policy behind the use in this legislation of the term "nominal cost" is that it is a nominal cost to the employer after he or she has availed of the grants. Whether the employer was reasonable in that situation will be determined by the Director of Equality Investigations. There is, therefore, no loophole which can affect people with disabilities. Once they have found that the employer has not taken advantage of State and other grants, the director will determine the reasonableness of the employer.
It is an unsatisfactory situation. It highlights the need for a constitutional amendment on disability. Does the Minister intend to make a report to the constitution review group on that issue? It appears that until there is a constitutional amendment to protect the disabled, the Oireachtas can only introduce weakened legislation. This Bill is not as strong as it should be because of the constitutional limitations.
It is obvious from the judgment of the Supreme Court that what is at issue is the balance between concepts of social justice and property rights. If it involves a choice between the terms "no cost" and "nominal cost", it is a poor choice. There are still huge questions about the term "nominal cost" and how it will be interpreted in the courts. The Director of Equality Investigations will probably do his or her best to ensure it is a wide definition, given the task of the office, but I agree with Deputy Gilmore that it will probably be defined in the courts. Hopefully, regard will be had to the Minister of State's comments and the discussion on the legislation. The word "nominal" has a restrictive connotation which would cause concern, even in other contexts. I accept that it could be interpreted as relative but it might not. There is a risk that it might be interpreted in an absolutist way.
The Minister of State said her choice was between the terms "nominal cost" or "no cost". It is a poor choice and I regret that we cannot make it stronger. The amendment provides a greater degree of protection for people seeking employment who are disabled. It would be helpful if the Minister could accept it.
I accept the Minister of State's good faith in this matter. It is her policy that employers should be obliged to use the State grants. Unfortunately, however, the legislation does not provide that they must use them and that is why I put down this amendment.
I agree that we need to examine the possibility of amending the Constitution but I cannot see how this amendment would not be acceptable within the current constitutional constraints. I urge the Minister to accept it. In effect, it inserts in the Bill what the Minister of State indicated to be her policy. I urge the Minister to consider accepting it. The amendment puts what the Minister has indicated is her policy into the legislation. I accept that ministerial declarations on policy affect how decisions are made but these are strengthened if they are included in legislation. I will press the amendment.
We all understand the Minister's frustration in trying to work around this constitutional obstacle. There may also be a conflict with European directives on equality for people with disabilities. I wonder if the Minister or the Attorney General looked at this aspect of the question.
I support Deputy O'Sullivan's amendment. It will distinguish between an employer who has a genuine reason for claiming excessive costs and one who simply does not want to be bothered. It places an obligation on the employer to make some effort to provide the facilities. There is nothing in the amendment which the Minister cannot accept. It is not in conflict with the decision of the Supreme Court. It simply places an obligation on the employer to explore the availability of grants and so on and provides an important safeguard against employers who do not want to be bothered with providing facilities and might use the legislation as an excuse.
This is an anti-discrimination Bill and not a positive action Bill. Because of what was found to be unconstitutional in the last Bill we must take things step by step. The point made by Deputy Barnes about European directives is relevant. Deputy Barnes and I and other Members are familiar with various directives on gender equality but there could not be directives in the area of disability until the Amsterdam Treaty came into effect. Directives on disability are now possible and like those on gender equality will be most welcome. Gender equality has progressed in the past 25 years and further steps will be taken along the route to equality for people with disabilities. The positive action measure of the Disabilities Bill will be another step on that route.
I would love to achieve everything in one Bill but the lesson learned in the Supreme Court last year was that we cannot do everything at once. We will make what progress we can within the constitutional constraints and we will go further in the future. We must take a step by step approach.
The question of a constitutional amendment is another important item on the list of things to do. Following the report of the Commission on the Status of People with Disabilities an inter-departmental committee was established in July 1997 which is looking at the recommendations of that report and the constitutional issues that arise from it. The committee is looking at a number of constitutional aspects of the disabilities field. There are constitutional and European directives issues.
In the office of the Director of Equality Investigations there will be labour law specialists who will be able to look very clearly at the issues that arise when appeal comes to them in cases of employers taking reasonable steps to provide facilities for employees with disabilities.
We all agree that the question of enshrining these obligations in legislation should be discussed but some problems arise. Many improvements are needed in grants and support services in the voluntary and State sectors. I would rather have these included in the positive action measure of the Disabilities Bill. When the Disabilities Bill is introduced, bearing in mind all the steps that need to be taken, we will have seen the progress of case law with regard to the Employment Equality Bill and will have learned from that. When we are here, in the not too distant future, discussing the Disabilities Bill we will have examples of cases taken under the Employment Equality Bill which will be a great help to us.
We are trying to do all we can to put anti-discrimination legislation on the statute book within the confines of the constitution. We are the only European country that does not have such legislation. All nine grounds in the Bill need to be legislated for. We must maintain a balance between pushing anti-discrimination measures to the limit and passing a constitutional bill. We do not wish to find ourselves next July with another unconstitutional bill and back here next year discussing yet another employment equality Bill.
This Bill will be a precedent so it is important that it is as strong as possible. I see the urgency of getting it on the statute book. I hope the Minister will look again at this amendment and get legal advice on it before Report Stage. This amendment does not contravene the Supreme Court judgment. Having this measure in the Bill would strengthen the Director of Equality Investigations and would lead to the development of better case law. I take the Minister's point that more work needs to be done on the grants and supports that are available but an amendment could take that into account. This amendment would strengthen the Bill without making it unconstitutional and it would be worthwhile taking advice on it.
I hope the Minister will take advice and consider the amendment before Report Stage. I will certainly press the amendment on Report Stage. I am concerned that if we do not amend this legislation case law may develop in a way we would not want.
This issue has been on the table from the start and we have sought detailed legal advice on it. There is no point in my pretending I will be able to propose something else between now and Report Stage because that is not the position. We have all the legal advice we can get on this issue and we will not get clearance to go any further. It is not for the want of trying because we have tried hard. We have been handicapped in dealing with a Bill which was found to be unconstitutional. If it was a new Bill the issue would be different. The Supreme Court has determined on this Bill and we have changed it in line with the Supreme Court ruling. We have pushed it as far as we can on the disability grounds. We have gone to the limit in terms of what we can do with it.
We are delighted to present the reasoned amendments we propose and the policy explanations on nominal cost. We must bear in mind the concerns that Deputy Fitzgerald expressed that a disabled person would be left with an employer not understanding the nominal cost policy. We must also bear in mind that they can appeal to the Director of Equality Investigations. There is an appeal mechanism in the legislation. We are at the water's edge, so to speak, on this issue.
I will press the amendment. I want to put pressure on the Minister of State's legal advisers because I do not believe the amendment is in conflict with the Constitution.
Amendment put.
The Select Committee divided: Tá, 7; Nil, 8.
Tá
- Barnes, Monica.
- Fitzgerald, Frances.
- Flanagan, Charles.
- Gilmore, Eamon.
- Higgins, Jim (Mayo).
- McGinley, Dinny.
- O’Sullivan, Jan.
Níl
- Ardagh, Seán.
- Cooper-Flynn, Beverly.
- Hanafin, Mary.
- McGuinness, John.
- O’Flynn, Noel.
- Ryan, Eoin.
- Wallace, Mary.
- Wright, G.V.
I move amendment No. 23a:
In page 20, lines 9 to 13, to delete subsection (3) and substitute the following:
"(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.".
Amendment agreed to.
Amendment No. 1 to amendment No. 23a not moved.
Amendments Nos. 24 and 25 not moved.
I move amendmentNo. 25a:
In page 20, between lines 13 and 14, to insert the following subsection:
"(4) In subsection (3)-
'employer' includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include-
(a) such a person who is seeking or using any service provided by the employment agency,
(b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and
(c) such a person who is a member of or is seeking membership of the regulatory body;
'providing', in relation to the special treatment or facilities to which paragraph (a) relates, includes making provision for, allowing or availing of such treatment or facilities, and 'provide' shall be construed accordingly.".
Amendment agreed to.
Amendments Nos. 26 and 27 are related and may be discussed together.
I move amendment No. 26:
In page 20, subsection (4), line 17, to delete "other reliable information" and substitute "information from a reliable and verifiable source".
I understand what the Minister of State is trying to do with this section, but I have some worries that the current wording is too wide and could be used in a discriminatory way to unfairly exclude somebody. My amendment could give more protection to a person in a case where this provision was being used. The intention is to provide extra protection to employers when they get extra information about someone they wish to employ, for example, to work with children. Is the definition too wide?
My amendment is quite similar and the intention is to try to define what reliable information is, which is quite difficult. I do not want it defined too broadly. The Supreme Court has said that not every idle word should be heeded, and we are trying to ensure there is a proper understanding of what is meant by reliable information.
This amendment seeks to impose a more stringent test in relation to information which can be relied upon in section 16(4). That section provides that none of the provisions of the Bill require employers to recruit, retain in employment or promote an individual who has a past criminal conviction for unlawful sexual behaviour or is considered, on the basis of reliable information, to engage in or have a propensity to engage in unlawful sexual behaviour.
This provision, which was extremely difficult to frame, is intended to provide protection for children and other persons who are vulnerable to unlawful sexual behaviour. The very special danger of paedophilia in society and the potential injury to children prompted the drafting of this subsection. We felt that with sexual contact we must make sure extraordinary caution is required, having regard to the way paedophiles operate. It was concluded that reliable information, tested, if need be, in an appropriate case by the Director of Equality Investigations or the Labour Court, who would take all factors into account, was the only safe way to proceed on an issue like this, and this was stated by the Supreme Court in relation to the provisions of the 1996 Bill. It may be taken as accepted that well established standards of constitutional justice and fair play will be applied, and for these reasons I am unable to accept the amendment.
The parliamentary draftsman has examined amendment No. 27 and advises that the text in the Bill is entirely satisfactory.
Obviously the aim of this section is extremely important and I fully support it. My only worry was that the phrase "reliable information" could lead to misuse of the section. I take it that it is difficult to draft the appropriate wording and I welcome the fact that constitutional justice and fair play will apply. As the Minister of State is satisfied that this is not open to misuse, I will not press the amendment.
Amendment, by leave, withdrawn.
Amendment No. 27 not moved.
Section 16, as amended, agreed to.
SECTION 17.
I move amendment No. 28:
In page 20, lines 23 to 25, to delete subsection (1).
The Organisation of Working Time Act, 1997, which came into operation on 1 March 1998 repeals the Shops (Conditions of Employment) Act. Accordingly, section 17(1) is superfluous and this amendment seeks the deletion of that subsection.
Amendment agreed to.
I move amendment No. 29:
In page 20, subsection (2), line 26, to delete "marital status" and substitute "gender".
When we refer to 1995 it should be properly indicated that the first one referred to gender rather than marital status. My amendment tries to ensure that this legislation is in accordance with other relevant legislation. It is my understanding that it is the gender of a person rather than the marital status of a person that gives them protection under the Maternity Protection Act, 1994. The Adoptive Leave Act and section 26 - which is the other amendment that is being jointly discussed here - refers to benefits for women in connection with pregnancy and maternity, including breast-feeding, or adoption. Bord Telecom were involved in a case about adoption which would indicate that men had similar rights to women as regards adoption. Therefore, it would be incorrect to imply that benefits as regards adoption relate to women only and not men. My amendments attempts to include implications from other legislation and tries to ensure this legislation would be in accordance with other legislation.
If Deputies bear with me while I explain this provision because the amendment appears to misinterpret section 17(2). Entitlement to maternity and adoptive leave under the Maternity Protection Act, 1994 and the Adoptive Leave Act, 1995, respectively, is generally confined to women. Men are entitled to such leave in limited circumstances, namely if the mother dies during the leave period and in the case of adoption if the man is the sole male adopter. The purpose of this subsection is to ensure that a married man, for example, will not be able to use this legislation to claim maternity or adoptive leave on the same basis as a widower or in the case of adoptive leave as a sole male adopter who would usually be a single man or widower.
As regards amendment No. 37 the purpose of section 26(1) is to ensure that legislation is collectively agreed and contractual arrangements which confine benefits such as leave to women in connection with pregnancy, maternity or adoption will not come into conflict with employment equality law. The reference to adoption in this subsection is intended in particular to protect from challenge adoptive leave schemes which are confined mainly to women and is entirely in line with EU law.
I will not pursue the amendment. I tabled it for particular reasons but I will have to accept that the Minister has access to more wide-ranging advice on this issue.
Amendment, by leave, withdrawn.
Section 17, as amended, agreed to.
Sections 18 to 22, inclusive, agreed to.
SECTION 23.
Amendment No. 31 is an alternative to amendment No. 30. Amendments Nos. 32 and 33 are related. Amendments Nos. 30 to 33, inclusive, can be discussed together by agreement.
I move amendment No. 30:
In page 24, between lines 10 and 11, to insert the following subsection:
"(2) It is immaterial for the purposes of this section whether A and B are of the same gender.".
I question the reason for taking amendment No. 33 with the rest of the amendments because I do not think it should be connected with them.
There will be an overlap in the debate and that is why these amendments are taken together.
I think amendment No. 33 deals with a separate issue but I will try to address them all.
These amendments, particularly amendments Nos. 30 to 32, inclusive, relate to whether "A" and "B" are of the same gender. It is in order to ensure that where there is sexual harassment that it would include people of the same gender as well as people of a different genders.
Amendment No. 33 tries to ensure that there will be effective communication to employees of the code of practice that exists in relation to sexual harassment. Deputy Woods was concerned about this matter in the original legislation. It is important that adequate information is given to people in the workplace in relation to the question of their rights with regard to a code of practice and conduct in relation to sexual harassment. I propose that wherever ten or more people are employed there should be a duty to give that information to the employees. It is a question of information.
With regard to amendments Nos. 30 and 31, these seek to extend the definition of sexual harassment to same sex sexual harassment. I realise that there are aspects of harassment and bullying which does not come within the scope of the nine grounds in the Bill. I am determined to focus on outlawing discrimination on these nine grounds rather than broadening the scope of the Bill to new issues however worthy they may be.
Part three of this Bill transposes into Irish law the European Equal Pay and Equal Treatment Directives. The foundation of these directives is the notion of a comparator of the opposite sex and I do not intend to deviate from the policy in this regard. Consequently, I cannot accept those amendments.
With regard to amendment No. 32, this amendment proposes to add to the definition of sexual harassment. The amendment is clearly well intentioned and seeks to cover behaviour which affects the dignity at work of employees. In practical terms I have been advised that the proposed amendment would not add to the definition. Behaviour which would affect the dignity of an employee at work is already comprehended by the present wording, for example, behaviour which is unwelcome and could reasonably be regarded as sexually or otherwise on gender grounds offensive, humiliating or intimidating. I am advised that the wording of the proposed amendment is not sufficiently precise for inclusion in a legal definition. I know that the wording has its origins in the EU recommendation and code of practice on sexual harassment and is also used in the Employment Equality Agency's code in this area. I am advised that its use is entirely appropriate in this context. For reasons outlined I am not disposed to accept this amendment.
With regard to amendment No. 33, I have given careful consideration to the proposal and while I sympathise with the objective involved I have doubts about the practicality of the measure. I suspect it could be extremely difficult for an employer to communicate a code of practice on sexual harassment to all customers, clients and business contacts. One can imagine the difficulties involved for a major retail store in the city centre. In addition, the amendment does not say what code of practice is to be communicated. If it is not an approved code of practice or derived from an approved code it could contain deficiencies which would be undesirable.
Over and above this the question arises as to how such a proposal would be policed. Having given this matter due consideration I would suggest that the existing provisions in the Bill already provide considerable scope for promoting best practice in Irish employments.
Given the admissibility of the approved codes of practice at proceedings under the Bill and the requirements that their contents must be taken into account there is already a strong incentive for employers to adopt and promulgate the policy to tackle sexual harassment.
My amendment is an attempt to strengthen the definition of sexual harassment being used in the Bill. I accept the Minister's saying that it is already encompassed in the definition which is being used. As she says, it arises from the EU recommendation and it is also common in codes of practice. I thought it would be worthwhile to have it in the legislation as well. The Minister has been advised that it is not precise enough to be legally acceptable and that it is already included. I accept what she has said on this issue.
On the radio this week we have heard a great deal about bullying and sexual harassment in the workplace and it is obviously a very real issue. It is one that has got a certain amount of publicity over time but probably one that has not been adequately addressed in the workplace. The Employment Equality Agency surveyed a large unionised organisation which showed that 80 per cent of women and 2 per cent of men had experienced sexual harassment during their careers, sixty per cent of which had occurred in the previous 18 months. A very important point - and I think it is relevant to my amendment - is that a staggering 79 per cent of people who witnessed the harassment chose not to get involved. Clearly physical harassment is not tolerated by employers with very rare exceptions but there is a lack of support mechanisms for people to raise their grievances concerning more subtle forms of harassment. I welcome the work being done by the Employment Equality Agency and many employers. The most important point is that this Bill strengthens attempts to deal with this problem. It is important that widespread information is distributed on the provisions of the Bill and that people are supported in undertaking positive action in tackling this problem. The code of practice suggested by Deputy O'Sullivan would be one way to do this, but the main point is that information on the provisions of the Bill generally need to be provided given the statistics I quoted and the known problems in the workforce.
Bullying and harassment is a problem for many people and they are only beginning to articulate it in public. However, they still feel unsupported and isolated when they do. There is a need for a support structure so that people know help is available and that the Equality Authority, if it gets the resources it requires to implement this legislation, will be a body to which people may go.
I take the point on the nine grounds and on gender. A recent radio programme highlighted considerable discrimination and that emotional and even mental breakdown occurs as a result of action by same gender employees towards one another. It is also a huge disincentive to promotion and to doing one's work properly or effectively in the workplace. Perhaps there is another area in which we can address this issue, which needs urgent consideration. Deputy Fitzgerald spoke about the responsibility an employer has not to allow bullying and harassment to take place in the workplace. As Deputy Fitzgerald suggested, an employee being bullied or harassed, even by somebody of the same gender, might have recourse to the Equality Authority.
As regards same sex harassment, it is seldom simply a matter of harassment on the grounds of sex and it is often based, for example, on age, sexual orientation or on family or marital status. Harassment on all these grounds is specifically covered in section 32.
It is not appropriate to include a code of practice in primary legislation. However, there is a provision in the Bill for the development by the Equality Authority of codes of practice. These will be admissible in evidence taken into account in determining any case. I hope that is a help.
I will not press the amendments and I take the Minister's advice that a code of practice may be more appropriate in terms of amendment No. 33. We need to stress that it is important that workers are made aware of their rights in this area. Often when people are subject to sexual or other harassment they do not have the confidence or ability to complain. The more information provided, the better.
Amendment, by leave, withdrawn.
Amendments Nos. 31 to 33, inclusive, not moved.
Section 23 agreed to.
SECTION 24.
Amendments Nos. 34 and 35 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 34:
In page 25, subsection (1), line 19, to delete "women's" and substitute "equal".
Amendment No. 34 proposes to protect the rights of men as well as women. Apart from the Chairman, women are discussing this Bill. However, that does not mean we should not protect men's rights. I merely seek to replace inequalities which affect women's opportunities in the area of access to employment. etc., by equal opportunities because there may come a time when men's rights need to be protected in this area.
My other amendment is important and I propose we include a provision that 3 per cent of the workforce in employments of more than 30 persons must be people with disabilities. There is a policy on this, but this provision should be inserted in the legislation to strengthen that policy. It goes back to what we discussed earlier that approximately 80 per cent of people with disabilities are unemployed. By inserting this in legislation, we will greatly strengthen the possibility of ensuring more people with disabilities have access to employment.
As regards amendment No. 34, the purpose of section 24(1) is to allow for a positive action measure to promote equal opportunities for men and women and is based on article 2.4 of the equal treatment directive. The reference to women in the text of the Bill reflects the terms of article 2.4 which is intended to highlight the fact that it is women who have traditionally been subject to discrimination. The proposed amendment broadens the scope of this provision and would diminish the capability of the subsection with the positive action provision in article 2.4 of the equal treatment directive. It would not be in the interests of the integrity of the Bill to accept it.
Amendment No. 35 has no relevance to Part III which focuses on gender discrimination issues. If it were to be provided for in the Act, it would be more associated with section 33 which facilitates positive action measures to integrate persons with a disability or any class or description of such persons into employment. However, the proposal introduces a statutory obligation and would require considerable developments as regards policing, dispute resolution, etc., before it could be brought into operation. I consider that such a statutory measure is not appropriate to this Bill. No such statutory quota has featured in Irish anti-discrimination law to date. A provision on these lines has the objective of positively discriminating in favour of people with disabilities as distinct from protecting such persons from discrimination.
Under section 33, an employer may at his or her discretion put in place positive action measures such as that proposed in the amendment. I wish to focus in this Bill on providing protection against discrimination. I readily acknowledge that the Bill is only one measure of response to the needs of a person with a disability but in the scope of the Bill, the measure is not appropriate. As discussed earlier, there will be a positive action Bill and this is clearly an anti-discrimination Bill.
I thank the Minister for her response. On the first amendment, we may have to revisit this in terms of protecting men in the future. However, I accept the Minister's explanation. On amendment No. 35, the Minister indicated - perhaps I misunderstood her reply - that it may be possible to look at this question in the disabilities Bill and it may be more appropriate to include a quota.
Quotas are positive action measures but this is anti-discrimination legislation. We do not know what will be in the disabilities Bill until we pass the Employment Equality Bill and the Equal Status Bill.
Amendment, by leave, withdrawn.
Amendment No. 35 not moved.
Section 24 agreed to.
SECTION 25.
Amendment No. 69 is related to amendment No. 36 and both may be discussed together. Is that agreed? Agreed.
I move amendment 36:
In page 25, lines 38 to 43, to delete subsection (3).
Will the Minister explain this section? I am concerned that we may be dealing with other countries where the rights of women are less protected - for example, countries which would not want female diplomats and who would have barriers to women's participation. Why do we need to include this in Irish legislation?
These measures relate only to the performance of duties outside the State and are in place where the laws and customs are such that they could not be reasonably performed by a person of a particular sex, religion or race. This is an Employment Equality Bill and Deputies are aware that different social customs and practices exist in some foreign jurisdictions which are neither practicable for the employee concerned to work in the environment nor economically viable for his or her employer to require him or her to do so.
The positions, customs, practices and cultures of other countries should be respected. The Bill is concerned with respect for difference. We should not insist on imposing our values on others if it is clear they are different. The Bill ensures that Irish employees are not subject to distress by being sent to work abroad in a capacity which the host country might find unacceptable.
Amendment, by leave, withdrawn.
Section 25 agreed to.
SECTION 26.
Amendment No. 37 not moved.
Section 26 agreed to.
SECTION 27.
Amendment No. 38 is in the name of Deputy O'Sullivan. Amendments Nos. 39 and 40 are alternatives and amendment No. 41 is related, therefore they may be discussed together.
I move amendment No. 38:
In page 26, subsection (1)(a), to delete lines 25 to 30.
Subsection 1 (a) (ii) reads "in order to guard, escort or control violent individuals or quell riots or violent disturbances, or", and subsection (iii) reads "in order, within the Garda Síochána, to disarm or arrest violent individuals, to control or disperse violent crowds or to effect the rescue of hostages or other persons held unlawfully,".
An indepth survey was taken among the New York police some years ago which found that policewomen were more effective than policemen in the event of riots, violence, bar brawls, etc. in so far as the presence of men only excited and indeed attracted violent retaliation from enraged people. It was also found that the presence of a woman, because of the natural nobility of men not to attack or hit a woman and the pacifying attitude she might take, helped to curtail and control situations much more effectively than men. This should be inserted in the Bill as there is a certain amount of flexibility. Appropriate choices should be made concerning the Garda Síochána or the Army in terms of the authority exercised on occasion. The controlling influence and calm participation by women is ignored.
I support Deputy Barnes' views. We all have the same aim in mind on these amendments. It is somewhat paternalistic to suggest that ban - gharda need to be protected from such activities in this legislation. It is a matter for the commanding officer - if that is the correct title - to decide the appropriate personnel rather than have it enshrined in legislation that women are unsuitable.
Why is it required to have the assignment of personnel to particular duties in the Bill? The Bill is about employment equality and what may happen in an operational situation is for judgment at a particular time. There may be a variety of reasons personnel might be deployed to deal with a set of circumstances and that is something which must be left to the judgment of the person in charge in the Garda, the prison service or wherever. The aspect to which I want to draw attention is the height requirement in regard to the recruitment of gardaí and it is that to which paragraph (b) applies.
There is a different height requirement at present for the employment of women and men - there is a minimum height requirement in both cases - and it is time to put an end to that. There should not be a height requirement. The idea that one has to be of a particular height to be a garda is nonsense. These days it is more important to know what is inside the brain rather than how high it is from the ground in employing people in the Garda or the security services. It is time for that requirement to be abolished and I ask the Minister to consider it.
I heard a story about somebody who applied to join the Garda and who was a quarter of an inch short of the required height. He was advised to go home and stay in bed for a few weeks in order for him to grow. I am not sure of the outcome, but it seems a rather strange requirement to join the Garda. People should be employed on merit rather than whether they are capable of playing mid-field for Mayo.
I will deal with amendments Nos. 38, 39 and 40. The purpose behind this provision is to ensure the efficient enforcement of law and order in cases of civil unrest, riot and other potentially violent circumstances. Physical strength or size may be a crucial and decisive factor either in the resolution of a difficulty or to ensure violence is averted. In such circumstances the Garda or prison authorities may deem it necessary to assign male rather than female officers to particular duties. Equally, there are also circumstances or occasions where the assignment of female officers is seen from an operational point of view to be desirable and necessary. This provision is essential to allow the Garda Síochána and prison service the flexibility necessary to make these operational decisions in the public interest and in the light of security considerations.
Members are saying there should be flexibility to make the operational decisions, but it is important to have this section. If Members turn to section 8, pages 13 and 14, they will see there is reference to discrimination in specific areas, discrimination by employers in relation to conditions of employment, training or experience for or in relation to employment. Page 14, line 7 states: "A person who is an employer shall not, in relation to employees or employment- (a) have rules or instructions which would result in discrimination against an employee or class of employees". Line 13 states: "otherwise apply or operate a practice which results or would be likely to result in any such discrimination." Because of that it is necessary to allow for the operational decisions to take place.
On the height requirement referred to in amendment No. 41, subsection (1) (b) of section 27 provides an exclusion from the Bill in so far as the application for height requirements for recruitment to the Garda Síochána and prison services are concerned. The nature of this exclusion recognises the different characteristics of men and women with regard to height, while at the same time responding to the security and public safety benefits of having persons in these employments whose height profiles are taller than the average height of the population. In addition, the application of a single height requirement could be indirectly discriminatory in that it could impact disproportionately on one gender. This would arise if, say, a minimum height requirement was such that a greater number of men could comply with it. The Bill, as drafted, seeks to avoid that by allowing the application of height requirements, but in such a manner that approximately the same proportion of men and women are likely to meet the criterion for the respective admissions.
Deputy Gilmore's amendment does not seek to abolish the height requirement for employment as a garda. The criteria for admission are determined under the legislation governing the Force. This provision simply seeks to ensure the requirement does not discriminate against the other sex.
Our approach to this legislation is very outdated. Our definitions are quite culture-bound. One has only to look at what is taking place in the UK. As it becomes a more multiÍcultural society the criteria for height tests have been broadened. They have been abolished to a large extent as a requirement for admission to the Defence Forces or the police. I support Deputy Gilmore's amendment. It is time we looked at this again. I am in no doubt it is discriminatory, and may be so on race as well as gender grounds. I appreciate this Bill might not be the place to change it, but it is an issue that needs to be addressed.
I take the Minister of State's point that the effect of my amendment would not abolish the minimum height requirement. I am anxious that the legislation should abolish the minimum height requirement. Consequently, I will withdraw my amendment and give notice of my intention to table another amendment on Report Stage, the effect of which will be to abolish the minimum height requirement.
I propose that we invite the Garda Commissioner to attend a meeting to discuss various issues, such as the promotion of women within the Garda. Some members got a strong hint from a visiting officer about the lack of promotion within the Garda. We could raise that matter with him.
The original legislation was drafted by the then Department of Equality and Law Reform which is now the Department of Justice, Equality and Law Reform. In that capacity we discussed this question with staff in the Department. It is not that we have not raised this matter. Deputy Gilmore has given notice of his intention to table a new amendment on Report Stage. What the Deputy is seeking to do applies to other legislation. This Bill does not deal with the minimum height requirement which the Deputy wishes to amend.
Amendment, by leave, withdrawn.
Amendments Nos. 39 to 41, inclusive, not moved.
I move amendment No. 42:
In page 26, subsection (2)(a), line 45, to delete "Act" and substitute "Part".
I am seeking to ensure only this part of the legislation would not apply to the recruitment for the Garda Síochana and that the entire Act would not be eliminated in that regard. This section outlines the reasons the gardaí are not included. I do not see why the entire Act should be excluded for activities within the Garda Síochána.
My advice on this is that Deputy O'Sullivan's amendment serves no practical effect. I am also advised that the use of the words "Act" or "Part" in these circumstances is a matter of the drafting style adopted in the legislation. While the drafting style adopted in this legislation is the use of the word "Act", it serves no practical effect.
Is the Minister of State saying that all other legislation dealing with discrimination on the nine grounds mentioned will apply to gardaí, assuming they fall into the right height category etc.? I want to ensure all other legislation is applied when people seek to join the Garda Síochána.
My advice is that this part deals with discrimination on the grounds of gender, whereas the Act applies to discrimination on age grounds.
I would like the Minister of State to consider this again before Report Stage. I believe the interpretation of the section is as I see it, not as the Minister of State sees it.
We raised this question with the Garda Síochána. The draftsman examined this matter on the three occasions the amendment was tabled and found no concern with regard to the use of the words "Act" or "Part" and that "Act" is the correct word to use in this Bill.
Amendment, by leave, withdrawn.
Section 27 agreed to.
Sitting suspended at 1.10 p.m. and resumed at 1.40 p.m.
SECTION 28.
I move amendment No. 43:
In page 27, subsection (1)(b), line 19, after "versa” to insert ”, or C and D have different family status”.
This is quite a complicated amendment. I am basically trying to bring the provision that refers to family status in line with the other parts of that section. It appears that the wording is different in that provision and I am trying to clarify why that is the case.
Family status is defined in the Bill as a parent or person in loco parentis in relation to a person who has not attained the age of 18 years, or as a parent or the resident primary carer in relation to a person of or over that age with a disability who needs care and support on a continuing, regular and frequent basis. The change proposed by this amendment to the family status definition goes beyond the intended scope in relation to this aspect of the legislation and would allow a person with family status to compare herself or himself with a person of a different family status. I cannot see that there is an obvious difficulty in this area that needs to be addressed.
Amendment, by leave, withdrawn.
Amendment No. 44 not moved.
I move amendment No. 44a:
In page 27, subsection (1)(h), line 32, after "is" to insert "a".
This is a drafting amendment to correct a typographical error in the Bill.
Amendment agreed to.
Amendment No. 45 not moved.
Section 28, as amended, agreed to.
Sections 29 and 30 agreed to.
SECTION 31.
Amendments Nos. 46 and 47 are related and may be discussed together by agreement.
I move amendment No. 46:
In page 30, subsection (2), line 16, to delete "subsections (4) and (5)" and substitute "subsection (5)".
Amendment agreed to.
I move amendment No. 47:
In page 30, subsection (4), lines 27 and 28, after "subsection (1)" to insert "and, in so far as it relates to an employer, subsection (5)".
Amendment agreed to.
Section 31, as amended, agreed to.
Amendment No. 48 not moved.
Section 32 agreed to.
SECTION 33.
Amendment No. 49 not moved.
I move amendment No. 50:
In page 32, subsection (2), line 27, after "subsection" to insert "and the ground covered by the specific provisions as to equality between other categories of persons as mentioned in Part IV".
This is really a question to the Minister of State as to whether the other categories can be covered here, and whether that would be appropriate.
The intention of the amendment seems to be to extend the scope of the positive action measures permitted in this section to all discriminatory grounds outlawed in the Bill. I have doubts about the efficacy of such a provision. The purpose of the Bill is to enshrine in Irish law the principle of equal treatment at work. The positive action provision in section 33 allows a derogation from that principle only in the case of three particularly disadvantaged groups which are listed at paragraphs (a) to (c) of subsection (1).
Without such a derogation these proactive measures, which in practice discriminate in favour of the disadvantaged groups, would be outlawed. Were the derogation to be applied to all the grounds covered by the Bill in the way that appears to be intended by the proposed amendment, the primary anti-discrimination purpose of the Bill would tend to be undermined. For example, in the case of people with disabilities, to whom we are trying to adopt a positive approach, the amendment would broaden the section too much and would thus undermine what we are trying to do.
If the Minister of State is willing to bring in positive action for two or three categories, why is that not built into all categories. The Minister of State has made the point a number of times that this is an anti-discrimination Bill, not a positive action one. Here, however, she is combining positive action with anti-discrimination. Why confine it to three categories? I do not follow the argument.
Because we are trying to focus on a target group. For example, 80 per cent of people with disabilities have experienced unemployment. We are trying to focus on a target group and give positive action measures to that target group because they are significantly, statistically and verifiably disadvantaged in their access to gainful employment.
Would the Minister of State not make the same argument, for example, about refugees or asylum seekers who find themselves in a very disadvantaged position? This Bill bans discrimination, but the Minister of State is not building in any positive action which may be necessary. It is quite obviously necessary in order to deal with the situation. Would it not seem reasonable to build in provision in this legislation for positive action in any of the nine categories that the Bill covers? They are minority groups.
To be fair, it is important to make the point that there are disadvantages arising from such measures for other groups. That is because, by their very nature, such measures tend to displace people in the labour market who are not members of the target group. Therefore, you are trying to give an advantage to a target group. If you try to give that advantage to everybody in society, you are no longer helping the target group. I want to stress that we want to make more positive action available, but this is just one of the positive action moves we are trying to make.
Amendment, by leave, withdrawn.
Section 33 agreed to.
SECTION 34.
Amendments Nos. 51 and 52 are related and may be discussed together by agreement.
I move amendment No. 51:
In page 32, subsection (1), line 35, to delete "(a)" and substitute "(b)".
I am trying to ensure that we are not too favourably exempting employers in relation to, for example, members of their own family or a change in marital status, as the next amendment refers to. The amendment seeks to close any loopholes that might be there with regard to an employer giving some sort of special favours to, in the first case, members of their own family and, in the second case, a change in marital status. Perhaps there are practices in this regard but we should question them.
The Bill outlaws discrimination on a marital status ground. However, it has long been a practice of good employers to provide benefits to an employee based on marriage or a change of marital status - for example, benefits such as a marriage gratuity or extra days off at the time of a marriage. These benefits are of great assistance to employees and it is our intention to continue to support initiatives of this kind made by employers. There is no reason for discouraging those practices, which is what happened here.
As regards the first amendment relating to "a benefit to an employee in respect of events related to members of the employee's family", does the Minister of State see that in a similar light?
Yes, because free travel concessions apply there.
Amendment, by leave, withdrawn.
Amendments Nos. 52 to 54, inclusive, not moved.
Section 34 agreed to.
SECTION 35.
Amendments Nos. 55 to 60, inclusive, are related and may be discussed together by agreement.
I move amendment No. 55:
In page 34, subsection (1), line 2, after "provide" to insert "on an exceptional basis and with the approval of the Minister".
I am attempting to allow for the possibility that an increased rate of remuneration will be covered in the Bill.
Amendment No. 56 seeks to delete "a particular rate of remuneration" and substitute "the same or an increased rate of remuneration". The intention is that an increased remuneration would not be excluded by the legislation.
Amendment No. 57, which proposes to delete the words "a particular" and substitute the words "the same or an increased", appears to specifically provide that an employee with a disability would be paid more than an employee without a disability or with a different disability, even though both do the same work. This in itself would be a form of discrimination and would be an inappropriate provision in the Bill. I, therefore, do not propose to accept the amendment.
Amendment No. 58 in my name seeks to approach the problem in a slightly different way. The provision in section 35(1) allows an employer to pay a disabled person less than a colleague who is doing the same work. My amendment seeks to apply some control on that by providing that the need for such a rate and the rate of remuneration must be approved by the equality authority. This would ensure employers could not have lower rates of pay for disabled employees without some control over the matter. The onus would be on the employer to justify having a lower rate of pay.
I am concerned the section could be a licence to exploit and underpay employees with a disability. Amendment No. 56 seeks to ensure that would not happen. Is the Minister concerned that this section could be used and quoted as a reason for underpaying people with a disability doing a specific job? I am worried about including in legislation a provision that would allow a rate of remuneration for work of a specific kind. It could be exploited and used inappropriately. We already know this is a problem. Many groups dealing with the disabled are concerned about some of the practices and rates of pay already in place. Given the low numbers of people with disablement in employment, there is a danger that the section could be used to underpay them. Has the Minister of State any concerns in that regard?
The legislation provides a control to ensure people with disabilities do work of equal value. If they are not paid the same money a case can be brought to the director of equality investigations. This section covers people with different types of disability. The majority probably have a learning disability who avail of employment opportunities, which are extremely important to them. Although they may not be able to work at the same level of capacity as others, it is important that employers who promote this kind of work cannot be brought before the director of equality investigations. We are seeking to encourage sheltered or supported employment in mainstream employment. I would not like that kind of employment opportunity denied to people with disabilities because of employers fears of an equality claim.
Subsection (1) does not provide a blanket exclusion; it will apply only where an employee with a disability is, by virtue of that disability, unable to perform the same amount of work or to work the same hours as an employee who does not have that disability. An application under this subsection to a specific case will be open to adjudication by the director of equality investigations and the Labour Court. This aspect covers a different group of people from those with disabilities who are protected by this anti-discrimination measure. There is a provision whereby people cannot be discriminated against because of their disability if they are in a position to do work of equal value which will get equal pay. We are trying to encourage people into the workplace with whatever abilities they can bring to it.
If people do work of equal value they should get equal pay. However, a disabled person may need slightly different working conditions, for example, a different starting time connected with transport factors. I am concerned that, in such circumstances, this section could be used by the employer to set a different rate of remuneration.
I understand what the Minister of State is trying to do. It is important we protect employees who may not be able to work at the same rate as others. While I accept the desire to cater for the form of employment covered by the section, its provisions may give rise to the danger of exploitation. Deputy Gilmore's amendment provides a good safeguard in that regard. Perhaps the Minister of State would comment on that. She said other legislation, including that pertaining to the Labour Court, would be available to those who considered they were being wrongly done by. However, will she clarify the way in which people are protected? It is a matter of subjective interpretation as to how well people should be paid in circumstances where they may not be doing equal work. It is important we ensure they are adequately protected.
We understand the categories of disabled worker the Minister of State has referred to and the circumstances she has in mind to which this section might apply. However, concern has been expressed for some time about the possibility of exploiting disabled workers in sheltered employment.
The Minister of State said that if a disabled worker is aggrieved at the level of remuneration provided for under this section he or she may exercise his or her right to ask the director of equality investigations to have that examined. That is not clear because the section excludes the application of those parts of the Bill from the circumstances described in the section. Part II deals with the question of like work, comparisons and so on. If, for example, a worker or somebody acting on behalf of a worker wished to pursue an employment case to the director of equality investigations he or she would have to cross two hurdles. They would have to establish that a case could be made, in other words, that Part II could apply.
It would also be necessary to prove the problem did not arise from the rate of remuneration by reason of the disability where the employee was restricted in his or her capacity to do the same amount of work or to work the same number of hours. They would have to establish that the problem did not arise by virtue of the disability to qualify for examination of their case under Part II. They would then have to present their case. My amendment seeks to turn this around. I am not attacking the principle of the idea.
It may well be acceptable that there be different levels of remuneration corresponding to the ability of the individual to perform the work but there should be the safeguard that first, the principle and second the rate of remuneration would be cleared through the authority. That should not be that difficult to do and there are many precedents. For example, employment of a foreign national must go through a clearing process, in terms of a work permit, in the Department of Enterprise and Employment. In a number of industries particular levels of remuneration have to signed-off on by joint labour committees. There are precedents of signing-off on rates of remuneration. It is important in this case that the onus be on the employer to show there is good grounds to justify the different levels of remuneration. Employees would have to overcome certain obstacles in making their case. My interpretation - and I am open to correction - of subsection (1) is that it would be extremely difficult for an employee to have his case heard.
This matter is an important one. Deputy Gilmore is right in saying the application of this subsection to a case is what would be adjudicated upon by the Director for Equality and Legislation and the Labour Court. It may happen that a person would have to first prove that this subsection does not apply to his case and then take his case further.
In looking at the Deputy's amendment we should consider if every time an employer in Dundalk or Tralee decides to encourage disabled people in his locality to come to work for him, we want to put an obstacle in his way by requiring him to go before the equality authority or the Minister. I do not want to place any stumbling blocks in the way of disabled people. Eighty per cent of people with disabilities are experiencing unemployment even though job opportunities are displayed in stores, local shops and the papers etc. I want to open the door to that employment to people with disabilities.
The work adaptation grant was referred to. We put in extra money last year when funding ran out to keep that scheme going to the end of the year. This year we have doubled funding in that area so that no employer can say he applied for a work adaptation grant and the list was closed. We are striving all the time to remove obstacles. Is it necessary to put this obstacle in place? Employers are always complaining about paperwork and now they have to seek approval to employ each individual on different rates of pay. We are trying to create incentives and encourage employments of a different nature.
We will deal with the disabilities Bill soon and if we want to take more positive action that is the place to do it. At this stage we want to be sure we do not place more obstacles in the way of people with disabilities while protecting them. This Bill seeks to protect people by way of anti-discrimination measures and ensuring that people with disabilities are paid the appropriate rate of pay for the job. We also seek to ensure we do not frighten off employers with equality employment claims.
The Minister of State is more concerned with creating opportunities.
Which is a positive action measure.
Positive action is very important but I worry about exploitation. One could argue that in a market of skills shortages there is potential for exploitation of people with disabilities. Has the issue of exploitation in sheltered work been raised with the Minister of State as the Minister responsible for this area? Is it something about which the Minister of State is concerned? Is she sure this measure will not lend support for lower rates of pay and exploitation?
On the first reading of this legislation one might worry about the manner in which it is drafted. However a person with a disability doing work of equal value to whom this subsection does not apply can go to the Director of Equality Investigations to avail of the anti-discrimination protection within the Bill. We are talking here about people to whom this subsection applies - those who are unable to perform the same amount of work or would the hours of an employee who does not have a disability. This section allows employers to employ those people on different hours or rates of remuneration.
I do not know if we can address the problem of exploitation here. I have not received mail about exploitation of people in these schemes; most mail laments the fact that are not enough schemes or opportunities. We recently launched a document in the Department to encourage people with disabilities into the workplace. We made the strong point that to be fair to employers, most are in favour of employing people with disabilities. We need to do more to encourage people in this area by introducing more schemes etc. I meet people in training centres around the country; people with learning disabilities who initially went into training from special schools and who have now become what is known as "the unfunded trainees". In other words, five or six years down the road they remain in the trainee category. These people should be given every opportunity to work to their ability during the hours and in a job that suits their ability. I am concerned that if we do not have a subsection like this in the Bill, we send a message to employers that they cannot continue to employ people with disabilities and if they continue to do so they will face equality claims. It is important to legislate for the category of people who need more job opportunities.
I agree with the Minister that we do not want to discourage employers from employing disabled people. I do not wish to insert in the legislation procedures which may become cumbersome and bureaucratic and which put additional obligations on employers that would have the effect of discouraging them from employing people with disabilities. However, my difficulty relates to exploitation and access to the director if a person has a complaint.
My biggest problem with the section is the position after it is established that the employee, due to his disability, is restricted in his capacity to do the same amount of work or to work the same hours. It is not difficult to foresee it would have to be acknowledged that the person would be restricted in his capacity to do the same amount of work. This would not only apply to people with learning disabilities.
A possible way for the Minister to deal with this would be to re-examine the issue and consider the concerns expressed and perhaps insert in another section a provision which would allow the director of equality investigations to take account of the restriction which might be placed on an employee in doing the same amount of work or working the same hours due to his disability. The section as it stands makes it difficult for the employee to state a case.
For example, if an employer employs a number of people with learning disabilities in a supermarket and everybody knows that he or she is exploiting the employees and they want to take a case, the first hurdle they must overcome when they go to the director is the problem of the acknowledgement of their restriction in their capacity to do the same amount of work. This part of the Bill will not apply and, therefore, they will be unable to take the matter further. It would be preferable if provision was made for the director or the Labour Court in addressing such an issue to have flexibility and to be in a position to take account of the restricted capacity of somebody to do the same work. This would have the benefit of allowing the employee access to the procedures but also allow the director and the court to take account of restricted capacity in issuing a finding.
In terms of the operation of the section after it is enacted, is there a danger that it could prevent people moving on to mainstream job opportunities? Could the section create a type of second class employment with a ceiling? There will be no incentives for employers to change the position because they have permission to pay a lower rate of remuneration. Therefore, it will be restrictive and curtailing rather than, as the Minister intended, an opportunity for positive action in the best sense.
If a person is in a company making jam and he or she can only work for a certain number of hours or at a certain capacity but he or she, as a result of training and experience, then moves to similar work of equal value, the person will be covered by the Bill. The legislation covers people with a disability who do work of equal value. There is no doubt that once a person moves on to work of equal value, he or she will be covered by anti-discrimination legislation.
The section would not have been included but for the need to recognise in the Bill that some people with disabilities are working or availing of opportunities which are important elements of their lives. We need to ensure that these opportunities are not closed off to them and that further incentives in that area are not discouraged. A person with a disability is protected by the legislation once he is doing work of equal value.
Amendment, by leave, withdrawn.
Amendments Nos. 56 and 57 not moved.
I move amendment No. 58:
In page 34, subsection (1), line 7, after "disability" to insert "provided that the need for such particular rate is sanctioned by the Equality Authority and the rate of remuneration approved by the Authority".
Deputy Gilmore made the important point that he did not wish to create obstacles for people with disabilities. However, the amendment may be an obstacle for an employer who decides to employ people with disabilities. Employers constantly complain about the number of PAYE and PRSI forms they must submit. I am worried the amendment would be another obstacle for employers in terms of employing people with disabilities.
I suggested an alternative to the Minister but she did not run with it. I will not press the amendment if the Minister is willing to examine the difficulty about access to the Director of Equality Investigations for the type of cases we discussed.
People will have access to the Director of Equality Investigations in terms of ascertaining whether the section applies to them. Everybody will have access to the director with regard to the application of the subsection to their case.
That does not resolve the problem. It only establishes whether a person is restricted in his capacity.
Will the Minister consider the matter for Report Stage?
No, because I am clear about the matter. I am concerned that the amendment would create a definite obstacle to the people I am trying to encourage to employ people with disabilities. I want to encourage a position where opportunities are available to people who can only work seven hours a week. I do not want to create any obstacles. However, if a person considers that he or she is doing work of equal value and the section is being applied to his or her disadvantage, he or she can apply to the Director of Equality Investigations.
Amendment put and declared lost.
Amendments Nos. 59 and 60 not moved.
I move amendment No. 60a:
In page 34, lines 23 to 31, to delete subsection (4).
Amendment agreed to.
Amendments Nos. 61 to 66, inclusive, not moved.
Question proposed: "That section 35, as amended, stand part of the Bill."
On section 6, the Minister agreed to review the operations of the Act in two years, with a possible view to adding other discriminatory grounds. The category of workers we have just discussed would merit a review also. I am not proposing an amendment but perhaps the Minister could revisit this issue in her review because this is a specific category of workers and we would know by then whether they had access to anti-discrimination legislation.
I have no problem agreeing that this should take place in two years' time as part of the review because we will consider all categories in that review. We have a built-in review process and will later introduce positive action measures, so we have two opportunities to revisit the matter.
Question put and agreed to.
SECTION 36.
Amendments Nos. 67 and 68 are related and may be taken together by agreement.
I move amendment No. 67:
In page 34, lines 32 to 43, to delete subsection (1).
These subsections of section 36 cover everyone employed in the Garda, the Defence Forces, the Civil Service, local authorities, harbour authorities, health boards, vocational education committees, and teachers in primary schools or post-primary schools. The implication of the provisions is that the employer can set down requirements as to where employees live and make it a condition of their employment, in which case the Bill will not apply to them. The employer can also set down a citizenship requirement, which is a remarkable provision in the aftermath of the referendum on the British-Irish Agreement. We have now agreed on this island that people may exercise options on citizenship, yet our law will provide that a person in Northern Ireland who exercises his right to be a UK citizen might find that he could be disqualified from being employed as a teacher or health board employee. The same applies to citizens of another EU country and I respectfully submit that this provision is contrary to the Treaty of Rome.
One cannot have a requirement which restricts the free movement of labour and a citizenship requirement in this Bill might be in breach of the that treaty. As to proficiency in the Irish language, I strongly believe State agencies should have employees capable of conducting business through Irish but as the Minister of State, Deputy Ó Cuív, recently explained, it is not necessary that everyone employed by a health board should have a smattering of school Irish. What is required is one or two people who are in a position to conduct business through Irish when so required. Will the Minister have another look at these provisions? They are extremely broad and are neither necessary or desirable.
I hope I can allay Deputy Gilmore's fears. His amendments seek to delete section 36(1) and (2), which provide latitude to the State to set conditions of eligibility for employment to certain posts in the public service. The latitude provided in the section is in line with the policy provided by successive Governments with regard to certain public service appointments. It is a practice both here and in EU member states generally to confine eligibility to apply for certain appointments, particularly in central Government, to nationals of the state in question. The section does not refer to "Irish citizenship", merely to "citizenship". It allows for this to happen in certain cases as approved by Irish and European law. It does not prevent British or Northern Irish people taking up these jobs, once that is permissible under law, but it allows for certain circumstances.
What would prevent the board of management of a school, which wanted to pre-determine the outcome of an interview process for a teacher, from setting down requirements on residence - for instance, that the successful applicant would have to reside in a certain place or within a certain radius - citizenship, and proficiency in Irish? This is not just about senior civil servants or requiring a Garda to live in a station, Army personnel to live in or close to the barracks, or people with navigational responsibilities in harbour authorities to live within a reasonable distance of the port; it is much wider, which is what concerns me.
All we are allowing for is potential policy in the Department of Education and Science, the Defence Forces, etc. We are not enforcing anything on the teaching profession. If a school board of management decides to discriminate against someone on a particular grounds, such as residence, it would have to satisfy the normal rules and regulations covering the appointment of teachers and the guidelines of the Department of Education and Science. This provision allows for the occasions when circumstances may be different in central Government jobs.
It does not do that - if it only covered central Government jobs it would be fine. To take the example of teachers, if a post as school principal became available, and the school board of management wished to exclude outside applicants or certain current employees, it could draw up a job description and requirements which would pre-determine the outcome. For example, it could set down where the applicant must live. Surely all that is important is that a teacher turns up in time for school in the morning. It is not necessary for a person to live in Ringsend to teach in the local school - if one lives in Lucan and is in work by 8.50 a.m., that is all that is required. This section will allow backdoor discrimination in requirements for certain jobs. If there is a problem with a garda being required to live in a station premises or an Army officer, these are limited circumstances which we all understand, and we should make provision for them. We should not, however, make this wide sweeping provision that everyone from the road worker in a local authority to the secretary of a Department is covered by these general regulations.
The policy of confining eligibility for certain public service jobs to State nationals is common internationally. This Bill is not the appropriate vehicle to set this practice aside in Ireland's case and it would be counterproductive to do so in advance of similar moves being made in other EU member states. It is policy across Europe that we allow for this. This is not the Bill to set that aside.
This is something we will regret. It opens the door to many other possibilities. Is it necessary that manual operatives in a local authority have proficiency in the Irish language or live in a particular place.
Does that happen at present in those jobs? The legislation does not change that.
I am concerned about what is being written into the legislation. This legislation makes certain forms of discrimination illegal and legitimises other forms of discrimination. Explicitly, it legitimises discrimination on the grounds of residence, citizenship and proficiency in the Irish language. It applies to almost the entire public service and does so in a way that it does not even have to be applied consistently. If the Western Health Board advertises for a clerical officer and states that there is a requirement that applicants live in Galway city, there is nothing anyone can do, it is perfectly legal.
Is this already in legislation or is this the first time it is provided for in legislation?
This legislation outlaws discrimination on nine different grounds. This section provides that these requirements apply to certain public service jobs. It does no more or less than that.
Will the Minister of State examine this before Report Stage?
No, I will not change this. This provision must be included. We cannot change recognised practice.
This is really rich. We are introducing legislation to end discrimination in employment and the Government is saying it wants to exempt the entire public service. This makes a joke of what we are doing.
If it will help, I will consider this again with Deputy Gilmore in advance of Report Stage. He is obviously very concerned about this and we will see if we can allay his fears.
Amendment, by leave, withdrawn.
Amendment No. 68 not moved.
Section 36 agreed to.
SECTION 37.
Amendment No. 69 not moved.
Amendments Nos. 70 and 71 are related and will be taken together by agreement.
I move amendment No. 70:
In page 36, subsection (6), line 6, after "to" to insert "employment not being clerical".
This relates to certain exemptions for the Defence Forces, the Garda Síochána and the prison services. There are certain restrictions regarding age and disability. My first amendment proposes to insert "employment not being clerical" and the second proposes to insert "other then civilian employment". The intention is to do away with unnecessary restrictions in these areas of work where people are carrying out work which would not be suitable for a person on the grounds of age or disability. There are activities in the Garda Síochána, the prison service and the Defence Forces such as clerical work where there would be no reason to strike out the age and disability grounds. I am trying to narrow the discrimination which would be possible in these areas.
There is no doubt the Deputy's amendments are well intentioned, but they may be based on a misunderstanding of the nature of the employment set out in (a), (b) and (c) of the subsection. The employments listed here - the Garda Síochána, the prison service and the Defence Forces - are comprised solely of operational staff. The Defence Forces are comprised solely of soldiers, naval and air corps personnel of all ranks. Similarly the Garda Síochána and the prison service are comprised solely of gardaí and prison officers. The Defence Forces also employ workers to do a range of tasks, from kitchen work to gardening and clerical work. These workers are called civilian employees. They are not members of the Defence Forces. Similarly the Garda Síochána and the prison service work side by side with clerical and other staff who are normally civil servants or contract workers. None of these individuals is a member of the Garda Síochána or the prison service. This information should clarify the point for the Deputy.
I thank the Minister for the clarification. I can see her point in relation to the Defence Forces and Garda Síochána. I notice that the initials in those cases are capitalised and those of "the prison service" are not. Is there any significance in that? Would that ensure people working in the prison service, those serving meals for example, are not excluded from coverage under this legislation.
Even in my own notes the initials of the prison service are lower case. That is the manner in which it is defined in legislation. It does not signify anything in terms of the difference between them. The prison service is clearly comprised of prison officers.
The Supreme Court mentioned this in its judgment, it queried these exemptions. Is the Minister satisfied these queries have been fully investigated?
The matter was investigated thoroughly at the time of the Supreme Court judgment. There is no doubt that it means prison officers, not clerical or kitchen staff.
Amendment, by leave, withdrawn.
Amendment No. 71 not moved.
Amendments Nos. 72 and 73 are related and may be taken together by agreement.
I move amendment No. 72:
In page 36, subsection (6)(c), line 10, after "service" and substitute the following:
"service,
where such discrimination is essential having regard to the particular job in question.".
These are connected to the previous amendments. I am proposing to include the words, "where such discrimination is essential having regard to the particular job in question". The second amendment is similar. Again I am trying to tighten up this section to ensure people working in these areas have the maximum amount of cover from the legislation and that exemptions exist only where strictly necessary.
With regard to amendment No. 72, my concern is that some minor disability or disfigurement could be used inappropriately for someone seeking employment in the Defence Forces, Garda Síochána or prison service. This section could be unduly harsh in its application. By accepting the amendment, the Minister of State would ensure a minor disability would not exclude an individual from a job in the Defence Forces which they would be well capable of doing. It fits in very much with Deputy O'Sullivan's amendment where such discrimination essentially has regard to the job in question. One could have some disability but it would not impact on one's ability to do the job. If these exclusions are total, many people who could work in these areas will be excluded.
We are not talking about people who work in Garda stations, prisons or Army barracks but the operational staff of the Defence Forces, Garda and the prison service, people who must possess the requisite physical capabilities to undertake the duties of such employments which are by their very nature physically demanding. These exclusions are necessary because of the security of the State, which depends on adequate functioning of all three employments. The exclusion will allow the three forces to recruit able bodied personnel of an age group which is commensurate with the functional requirements of the organisations concerned.
With regard to amendment No. 73 I am fully aware of the issue involved. However, I must consider the question of whether what might be regarded by some as a minor disability or disfigurement may be regarded in the context of employment in the Defence Forces, the Garda and the prison service as a serious impediment which would have an adverse effect on the performance of a person's duties.
It is an unduly harsh interpretation. There is room for this exclusion. While I take the point that operational staff are involved, complete exclusion on grounds of disability is severe. There are many jobs in the Defence Forces where if an individual had a minor disfigurement it would not be a barrier to performing their jobs. Total exclusion from protection under this ground is inappropriate. The employment rights of those in the Defence Forces are changing worldwide and there is a greater emphasis on individual rights. Therefore, to exclude them totally on the disability ground is unduly punitive and is not necessarily in the best interest of the Defence Forces or the individuals involved.
We held discussions with groups because we were interested in what would be considered minor disabilities. They pointed out different examples to us. For example, if one has a scar on a muscle it is minor, but in the Defence Forces if one carried a rucksack, one could be impeded from doing the job. In the case of the Garda where a great deal of walking is involved, a foot impediment, such as a flat foot, could be a different ball game if one was on the beat. The Garda and the Defence Forces said what would be minor to the rest of the population may be an impediment to their operational staff. A high level of fitness is essential for such staff and in certain circumstances they may pose a threat to themselves as well as the security of the State.
Some of those objections are spurious. I am pleased the Minister of State had discussions with the Garda and the Defence Forces but there is more scope than the Minister is allowing for the groups working with disabilities to have further discussion on the issue. It is worthy of examination.
Amendment, by leave, withdrawn.
Amendment No. 73 not moved.
Question proposed: "That section 37 stand part of the Bill."
Subsection (1) of the original Bill gave rise to most comment and discussion. If, for example, if there is a vacancy for a matron in a hospital, and a nurse, who is believed to be the most suitably qualified person for it, believes the reason she did not get the job was that she had lapsed in the practice of her religion and discreet inquiries were made about that to her former parishes, would she be entitled to ask the director of investigations to examine the case under the Bill?
It is strictly conditional on the institution concerned being under the direction or control of bodies established for religious purposes or whose objectives include the provision of services and to promote certain religious values and the strict tests applied for exclusion may operate. The first test requires that any discrimination practised by such an institution must be reasonable in order to maintain its religious ethos and the other is that the discrimination must be reasonably necessary in order to avoid undermining the ethos. These are not subjective tests which would apply on the simple say-so of the institution concerned. They are balanced tests which will be adjudicated on by the independent third party, namely the director of equality investigations.
Question put and agreed to.
Sections 38 and 39 agreed to.
NEW SECTION.
Amendments Nos. 75 to 79, inclusive, form a composite proposal and are related to amendment No. 74. All may be discussed together, by agreement.
I move amendment No. 74:
In page 36, before section 40, to insert the following new section:
40.-(1) As soon as practicable after the coming into operation of section 38 and thereafter within 6 months before each third anniversary of such coming into operation, the Authority shall prepare and submit to the Minister, for approval by the Minister with or without amendment, a strategic plan for the ensuing 3 year period.
(2) A strategic plan shall-
(a) comprise the key objectives, outputs and related strategies, including use of resources, of the Authority,
(b) be prepared in a form and manner in accordance with any directions issued from time to time by the Minister, and
(c) have regard to the need to ensure the most beneficial, effective and efficient use of the resources of the Authority.
(3) The Minister shall, as soon as practicable after the strategic plan has been approved, cause a copy of the strategic plan to be laid before each House of the Oireachtas.".
Section 49(2) states in the performance of duties under this section the chief executive officer shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or the merits of the objectives of such a policy. Why must that be included in that form? Was it passed in previous legislation? Is it part of the SMI?
Was it passed in previous legislation?
I will check that and come back to the Deputy before Report Stage.
The wording seems very strong and is not a democratic approach to the relationship that should exist between the chief executive officer and a Minister. I am concerned by the inclusion of "the chief executive officer shall not question or express an opinion on the merits of any policy of the Government." Will this apply to every semi-State body?
I will come back to the Deputy before Report Stage.
One can think of the chief executive officer of a health board, for example, who cannot question the policy of the Minister. It depends on how one interprets policy. There are discussions at health board meetings on numerous issues where members express opinions and the chief executive officer replies. The amendment is restrictive in that regard.
Was Deputy Gilmore concerned about this also?
Yes. I consider it a Stalinist provision.
I may be tabling further amendments of a technical nature to some of these provisions on Report Stage. It is important to say that now.
Amendment agreed to.
Section 40 agreed to.
Sections 41 to 47, inclusive, agreed to.
SECTION 48.
I move amendment No. 75:
In page 40, lines 4 to 6, to delete subsection (2) and substitute the following:
"(2) The Chief Executive Officer shall manage and control generally the staff, administration and business of the Authority and perform such other functions as may be conferred on him or her by or under this Act or determined by the Authority.
(3) The Chief Executive Officer shall be responsible to the Authority for the performance of his or her functions and the implementation of the Authority's policies.
(4) The Chief Executive Officer shall provide to the Authority such information, including financial information, in relation to the performance of his or her functions as the Authority may from time to time require.
(5) Such of the functions of the Chief Executive Officer as may from time to time be specified by him or her may, with the consent of the Authority, be performed by such member of the staff of the Authority as may be authorised by the Chief Executive Officer.
(6) The functions of the Chief Executive Officer may be performed during his or her absence or when the position of Chief Executive Officer is vacant by such member of the staff of the Authority as may from time to time be designated for that purpose by the Authority.".
Amendment agreed to.
Section 48, as amended, agreed to.
NEW SECTIONS.
I move amendment No. 76:
In page 40, before section 49, to insert the following new section:
49.-(1) The Chief Executive Officer of the Authority shall, whenever required by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, give evidence to that committee on-
(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General which the Chief Executive Officer or the Authority is required by or under statute to prepare,
(b) the economy and efficiency of the Authority in the use of its resources,
(c) the systems, procedures and practices employed by the Authority for the purpose of evaluating the effectiveness of its operations, and
(d) any matter affecting the Authority referred to in a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act, 1993, or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.
(2) In the performance of duties under this section, the Chief Executive Officer shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.".
Amendment agreed to.
I move amendment No. 77:
In page 40, before section 49, to insert the following new section:
"50.-(1) The Minister may, after consultation with the Authority, appoint such number of persons to be members of the staff of the Authority as may be approved by the Minister for Finance.
(2) The Minister shall, after consultation with the Authority and with the consent of the Minister for Finance, determine the grades of staff of the Authority and the numbers of staff in each grade.
(3) Each appointment under this section shall be
(a) on such terms as the Minister may, with the consent of the Minister for Finance, determine and shall be subject to the Civil Service Commissioners Act, 1956, and the Civil Service Regulation Acts, 1956 to 1996, or
(b) on such other terms and conditions as may be determined by the Authority and approved by the Minister with the consent of the Minister for Finance.".
Amendment agreed to.
SECTION 49.
Question proposed: "That section 49 be deleted from the Bill."
Am I right in saying that the Employment Equality Agency becomes the Equality Authority?
As I understand it, when one State agency is absorbed by another there is normally a provision in the legislation which covers the existing staff of the agency. I do not know the number of staff in the Employment Equality Agency. Legislation usually provides for the retention in employment in the new regime of the existing staff at conditions of employment which are not worse than those which they currently enjoy and it protects their employment. Is such a provision being made in this Bill? If not, it needs to be made. The formula for it is well established at this stage.
The staff of the Employment Equality Agency are civil servants so the Deputy's worry does not apply. They remain civil servants in the Equality Authority. The difficulty does not arise.
Does that include the chief executive?
The chief executive is a civil servant with a contract as chief executive.
Question put and agreed to.
Section 50 agreed to.
NEW SECTIONS.
I move amendment No. 78:
In page 40, before section 51, to insert the following new section:
"51.-(1) The Chief Executive Officer, following the agreement of the Authority, shall-
(a) submit estimates of income and expenditure to the Minister in such form in respect of such periods and at such times as may be required by the Minister, and
(b) furnish to the Minister any information which the Minister may require in relation to such estimates, including proposals and future plans relating to the discharge by the Authority of its functions over a period of years.
(2) The Chief Executive Officer, under the direction of the Authority, shall cause to be kept all proper and usual books or other records of account of-
(a) all income and expenditure of the Authority,
(b) the sources of such income and the subject matter of such expenditure, and
(c) the property, assets and liabilities of the Authority,
and shall keep and account to the Authority for all such special accounts as the Minister or the Authority, with the consent of the Minister, may from time to time direct to be kept.
(3) The financial year of the Authority shall be the period of 12 months ending on the 31st day of December in any year.
(4) The Authority, the Chief Executive Officer and the other officers of the Authority shall, whenever so requested by the Minister, permit any person appointed by the Minister to examine the books or other records of account of the Authority in respect of any financial year or other period and shall facilitate any such examination, and the Authority shall pay such fee therefor as may be fixed by the Minister.
(5) The accounts of the Authority for each financial year shall-
(a) be prepared in such form and manner as may be specified by the Minister, and
(b) be prepared by the Chief Executive Officer and approved by the Authority as soon as practicable but not later than 3 months after the end of the financial year to which they relate for submission to the Comptroller and Auditor General for audit,
and a copy of the accounts and the auditor's report thereon shall be presented, as soon as practicable, to the Authority and to the Minister.
(6) The Minister shall cause a copy of the accounts and the auditor's report referred to in subsection (5) to be laid before each House of the Oireachtas.".
Amendment agreed to.
Section 51 deleted.
I move amendment No. 79:
In page 40, before section 52, to insert the following new section:
"52.-(1) The Authority shall, within 6 months of the commencement of every calendar year, make a report to the Minister on the activities of the Authority in respect of the previous calendar year, or in the case of the first calendar year during which section 38 came into operation, that part of the calendar year in which section 38 was in operation.
(2) A report under subsection (1) shall include information on the performance of the functions of the Authority during the period to which the report relates and, without prejudice to the generality of the foregoing, shall include in the report-
(a) an account of any equality review made in that period,
(b) such information as the Authority considers appropriate concerning the implementation of equality action plans in that period, and
(c) such other information in such form as the Authority thinks fit or the Minister may direct.
(3) The Authority shall, if so requested by the Minister, furnish to the Minister such information as the Minister may request relating to-
(a) any matter concerning the policy and activities of the Authority generally,
(b) any specific matter or account prepared by it, or
(c) any report specified in subsection (1),
and the information shall be furnished by the Chief Executive Officer acting under the general authority of the Authority.
(4) The Minister shall cause a copy of every report under subsection (1) to be laid before each House of the Oireachtas.
(5) In subsection (2) 'equality review' and 'equality action plan' have the same meanings as in Part VI.".
Amendment agreed to.
Section 52 deleted.
SECTION 53.
Amendment No. 80. Amendments No. 81 is related. Therefore, amendments Nos. 80 and 81 may be discussed together, by agreement.
I move amendment No. 80:
In page 41, subsection (1), line 16, to delete "concurrence" and substitute "consent".
Amendment agreed to.
I move amendment No. 81:
In page 41, lines 19 to 24, to delete subsections (2) and (3) and substitute the following:
"(2) The Authority may, with the consent of the Minister given with the concurrence of the Minister for Finance, borrow temporarily such sums of money as it may require for the purpose of providing for current expenditure.".
Amendment agreed to.
Section 53, as amended, agreed to.
Section 54 agreed to.
SECTION 55.
I move amendment No. 82:
In page 42, between lines 27 and 28, to insert the following subsection:
"(4) The Minister shall review after two years the resources available to the Equality Authority.".
Obviously, the Employment Equality Agency will be changed dramatically by this new legislation. The Bill covers nine new grounds of discrimination which need to be covered by the new Equality Authority. Resources are a key issue. If this Bill is to mean anything, the resources must be adequate to the task in hand. There is a wider development of the protections within this Bill than was the case in legislation to date. The Bill deals with a much wider group. It is clear from the information available that the Equality Authority will be busy. It will have a large task to fulfil. Even as an employment equality agency, the resources were often limited. It would be important to build into the legislation a review, not just of the Bill and how it is working in the two years as the Minister agreed but of the resources which are being made available in that period.
I linked this with an amendment, which I tabled earlier but decided not to press, where I suggested there should be a consultative forum with the groups concerned after two years. It is extremely important that there should be a review of the resources made available. We are embarking on a new area of tackling discrimination and I want to be assured that we have the ability to review the resources after the two year period.
I support the amendment. All of us are aware of how difficult it is to get adequate resources. If a substantial system of supports is not built in, it is difficult for the agency to get a budget increase large enough which is justifiable to the Department of Finance. I speak from experience. If it was built into the legislation, it would be of tremendous help to the Ministers, other than the Minister for Finance, and the authority.
With regard to resources being reviewed every two years, at present resources of public bodies are reviewed on an annual basis when the budget requirements for the Department are being considered. In this situation, where the Department's annual review is taking place, the annual review of the authority's budget would have to take place at that time. The authority would not be an exception to that. Given the existence of this tried and trusted mechanism, to build in here a two year review when there is an annual review would not advance what we seek to do. Furthermore, section 40 requires the preparation of a strategy statement by the authority every three years. Such a statement is likely to flag any resource deficiencies which may exist in the context of the work programme of the authority.
The Bill also contains a commitment for the legislation to be reviewed after two years. No doubt at that juncture it will be possible to ascertain the effectiveness of the operation of the Equality Authority in the light of the additional responsibilities it has been given under this Bill and under the equal status legislation.
As most of the Deputies will be aware, I was chairperson of the former Joint Committee on Women's Rights when it conducted research into the need for the resources of the new authority. Whereas the Employment Equality Agency's budget would have been £500,000 this year, the Department's budget this year allows for £2.1 million, which takes into account that a new premise, equipment, computers and additional staff will be required. The first year's Estimate presumed that the Bill will be passed and the extra funding is provided for this year.
Amendment, by leave, withdrawn.
Section 55 agreed to.
Sections 56 to 66, inclusive, agreed to.
SECTION 67.
Amendment No. 83 is in the name of Deputy O'Sullivan. Amendment No. 84 is related and amendment No. 85 is an alternative to amendment No. 84. These amendments may be taken together by agreement.
I move amendment No. 83:
In page 48, subsection (3), line 11, after "invite" to insert "or require".
This amendment seeks to strengthen the power of the authority with regard to inviting businesses and groups of businesses to carry out equality reviews and prepare and implement equality action plans. The wording states that the authority "may invite". I am proposing that we add "or require" to give it more authority to insist that equality reviews and action plans are carried out.
My other amendment is similar to that tabled by Deputy Fitzgerald and suggests that the threshold of 50 employees be reduced to not less than 20 to include more businesses under this section.
My amendment brings more small businesses within the scope of this section where they can be encouraged to implement equality reviews and action plans. Given that large numbers of small firms employ a large number of people, I do not see why they should not be included within the scope of the legislation. I am seeking to reduce the threshold from 50 to 25 employees.
As regards amendment No. 83 and the issue of inviting or requiring, I would like the authority to have a moral authority whereby an invitation to a business would be such that the business would respond to that request or invitation. There was a problem whereby we were compelling people to spend money by inserting that businesses were required to do certain things and that could have financial ramifications. However, it is better to leave it at invite and to stipulate that if invitations are not taken up, it would be a question of looking again at the section. Businesses should not be forced by law to incur expenditure and legislation should not be written in such a way as to give the Equality Authority the power to force businesses to incur expenditure.
The same concepts and ideas apply to amendment No. 84. I do not believe we should give authority to the Equality Authority to apply this section to relatively small businesses employing between 25 people and 50 people. That would be an unfair imposition on such businesses.
I am glad Deputy Ardagh made his intervention before me. I would also like to respond to this point. What would happen if a company refused to take up the invitation to carry out the review? Much as we would like to believe in moral authority, it may not exert as much influence as legislation. We have a long history of instances where moral authority did not improve situations and where legislation was necessary. We have to consider a requirement. I am sure the authority will act with due discretion and go through the procedure of inviting before it becomes heavy handed. The authority will need to have such legislative force.
We have a history of small businesses, and I hope that will continue. If we are to think along the lines of "small is beautiful" that is one of the areas we should support. However, in an anti-discrimination Bill in the context of Ireland, a firm employing 50 people is considered a medium-sized firm. Therefore, a firm with 25 employees should be included in this section, otherwise we will discriminate against people employed by small businesses.
With regard to amendment No. 83, section 67(3) requires that the authority may invite organisations to carry out equality reviews and to prepare and implement action plans. The use of the term "invite" underlines the voluntary nature of this provision. The addition of "or require" would place an imperative on an organisation to comply with the request from the authority. This change would not be in accordance with policy in this area. The amendment may have been prompted by a concern that the voluntary nature of this position would render it ineffective. I assure Deputies that any such concern is unfounded.
Section 67 states that the authority "may invite", section 68 states that the authority "may require". Section 68 therefore, covers the issue of requiring companies to take action. If an organisation which employs 50 or more people fails to take up the authority's invitation under section 67, the authority can carry out an equality review and prepare an equality action plan. In other words, if companies do not respond, an enforcement measure is in place.
With regard to amendments Nos. 84 and 85, provision for an equality review and an action plan is a completely new Government initiative in the field of equality. It is devised to target large employments in particular, where the impact of equality reviews and action plans will be greatest. It recognises that small firms may have difficulty in becoming involved in formal mechanisms of this nature. The special treatment of small and medium-sized enterprises is generally recognised as an appropriate consideration in the context of employment regulation. In this provision such special treatment is applied. There is nothing to prevent smaller firms from undertaking an equality review and an action plan on a voluntary basis, this is encouraged. However, companies with more than 50 employees must carry out the reviews.
Amendment by leave, withdrawn.
Amendments Nos. 84 and 85 not moved.
Section 67 agreed to.
SECTION 68.
I move amendment No. 86:
In page 49, subsection (4)(b), lines 24 to 28, to delete from and including "to the" in line 24, down to and including line 28 and substitute the following:
"to the Authority about the proposed substantive notice,
the Authority shall have regard to those representations before deciding whether or not to proceed with service of the proposed substantive notice and, if so, as to its contents.".
This amendment is of a technical nature. It seeks to separate the proposed substantive notice and the action which follows. The current drafting does not seem clear.
An initial reading of the Bill suggests that there may be a need to realign the last clauses in paragraph (b) so that they apply to both paragraphs (a) and (b) of the subsection. My advice is that the drafting is correct. The naming of the provision is clear as it stands because the advance notice provided for in paragraph (a) is contained by reference in paragraph (b) so that both paragraphs stand without the need for elaboration.
Amendment No. 86, by leave, withdrawn.
Section 68 agreed to.
Sections 69 and 70 agreed to.
SECTION 71.
I move amendment No. 87:
In page 50, subsection (1), line 7, after "any" to insert "enactment and in particular any".
This amendments seeks to broaden the scope of the legislation to include all legislation, not just those referred to in this subsection. By including any enactment, especially any of those referred to in section 71 which states: ". . . . any of the enactments for the time being specified in subsections (1) to (5) of section 17. . . . ", I am in effect saying the authority can review any legislation as opposed to the specific legislation referred to in this section. It broadens its scope.
Section 17 of the Bill provides an exclusion from the scope of the legislation to the sections of enactments listed in the section. The authority has been given powers to review the continued need for such exclusions, because of the favourable position enjoyed by these enactments compared with the generality of enactments. Enactments not listed in section 17 enjoy no such protection and may be challenged through the redress procedures of the Bill in the normal way. The authority has broad-ranging powers under the Bill, including powers to conduct an inquiry, given by section 56, and to sponsor suitable cases where an important principle of equality is at issue, provided by section 65. Through these and other powers, including the option of publicising discrimination in the annual report, section 52 is more than adequate for challenging departures from the principle of equality when and where it occurs in legislation.
Ideally, we would prefer to see the authority having the broadest possible powers in this regard. When the Bill is reviewed in two years' time, perhaps that might be considered because it may well be that the authority would be working so well that the range of legislation upon which it could pass judgment could be widened.
Little did I think when I conducted research on this as Chairman of the Joint Committee on Women's Rights that I would be the Minister answering the questions on it. One does not know who will be in this position in two years' time.
Amendment, by leave, withdrawn.
I move amendment No. 88:
In page 50, subsection (2), line 19, after "organisations" to insert "including organisations of".
This amendment is designed to widen the scope of the authority's powers.
Section 71(2) provides that the authority in reviewing legislation must consult with trade unions and employers' organisations. There is nothing in the section to require or prevent the authority from consulting with any other party it considers appropriate to the case.
Amendment, by leave, withdrawn.
Section 71 agreed to.
Section 72 agreed to.
SECTION 73.
I move amendment No. 89:
In page 52, between lines 8 and 9, to insert the following subsection:
"(8) The Director shall, within 6 months of the commencement of every calendar year, make a report to the Minister on the activities of the office of the Director in respect of the previous calendar year, or in the case of the first calendar year of operation, that part of the calendar year in which the office was in operation.".
Amendment agreed to.
Section 73, as amended, agreed to.
Section 74 agreed to.
SECTION 75.
I move amendment No. 90:
In page 54, subsection (3)(b), line 12, after "which" to insert "Article 119 of the Treaty establishing the European Community or".
The amendment relates to Article 119 of the Treaty establishing the European Community. I understand cases have been taken under this article and propose, therefore, that it be contained in this section of the Bill.
Following receipt of a similar amendment when the Bill was being considered in the Seanad, I sought confirmation of advice already received when the Bill was being drafted. My advice is that the reference to the equal pay and equal treatment directives are the appropriate references in the section. The equal pay directive interprets Article 119 of the Treaty adequately so far as the categories of persons covered by the Bill are concerned. I asked for the matter to be re-examined since the Bill was in the Seanad and I am satisfied with the original advice.
Amendment, by leave, withdrawn.
Question proposed: "That section 75 stand part of the Bill."
I wish to make an important statement on this section. I received representations from PDFORRA, the Permanent Defence Forces and Other Ranks Representative Association, about the compatibility of the redress provisions for the Defence Forces given the recent developments in European Court of Justice law. Arising from the representations, I am having the matter examined and, depending on its outcome, I may table amendments on Report Stage which would give members of the Defence Forces access to the redress procedures in this section in cases of discrimination on the gender ground. Consequential amendments to other sections of the Bill may also be necessary. I may also table a technical amendment to section 35.
Will the same apply to the Garda Síochána?
Gardaí are already within the scope of the legislation.
Question put and agreed to.
Sections 76 to 79, inclusive, agreed to.
SECTION 80.
I move amendment No. 91:
In page 60, subsection (5), lines 2 to 6, to delete all words from and including "and arises-" in line 2, down to and including line 6.
It is not normal practice in employment rights legislation to provide an award of interest on compensation. Section 80(5) is an exception which is necessary on the basis of the rights arising from EU legislation and is in line with the judgment of the European Court of Justice in the Marshall case. However, interest on awards is payable in any event under section 90 in all cases where an employer fails to pay compensation and the award falls to be enforced by the courts.
Amendment, by leave, withdrawn.
Section 80 agreed to.
SECTION 81.
I move amendment No. 92:
In page 60, subsection (3)(b), lines 31 and 32, to delete "and section 56 of the Industrial Relations Act, 1990 (summoning of witnesses etc.)".
I suggest in this amendment that all grounds should be included and that the wording in the section should, therefore, be deleted.
Section 63(3) of the Employment Equality Act, 1996, was found to be unconstitutional in the Supreme Court judgment of 5 May 1997. That subsection provided that the Director of Equality Investigations could certify the circumstances in which the offences of obstructing or impeding an investigation and/or failing to comply with the requirement of a specified person were alleged to have occurred. That was a wide-ranging provision. The range of facts which might have been included was very wide and the facts were likely to give rise to sharp conflict of evidence due to the nature of inferences which could be drawn from them. The Supreme Court stated on several occasions in its judgments that there were scientific, technical or other matters capable of or amenable to prima facie proof by certification provided the certification process was reasonable, justifiable and in proportion to the limitation of the normal requirement of word of mouth evidence. A certificate under section 56 of the Industrial Relations Act, 1990, is different from a certificate under section 63(3) of the Employment Equality Act, 1996. My advice is that section 56 of the Industrial Relations Act, 1990, is not unconstitutional for the reasons outlined.
Amendment, by leave, withdrawn.
Section 81 agreed to.
Sections 82 to 84, inclusive, agreed to.
SECTION 85.
I move amendment No. 93:
In page 64, subsection (3), line 42, after "81(3)" to insert "and the powers under section 82(2)".
I am trying, through this amendment, to link section 82(2) with this section as regards the Labour Court and its hearings.
This amendment seeks to make the redress provisions in relation to collective agreement the same as those in respect of individual disputes. This was never the intention of the Bill. Disputes in relation to collective agreements are subject to a separate procedure which is in keeping with their industrial relations context.
Amendment, by leave, withdrawn.
Section 85 agreed to.
SECTION 86.
I move amendment No. 94:
In page 65, subsection (1), lines 4 and 5, to delete paragraphs (a) and (b)
I am seeking to delete paragraphs (a) and (b) of section 86 which state:
86.-(1) Every decision of the Director or determination of the Labour Court under this Part shall be in writing and-
(a) if the Director or the Labour Court thinks fit, or
(b) if any of the parties so requests,
the decision or determination shall include a statement of the reasons why the Director reached that decision. . . .
I propose in my amendment that that information should be given in any event and not just if the director or the Labour Court thinks fit or any of the parties so requests. It should be available because it is desirable and is in accordance with the Freedom of Information Act.
The effect of the amendment would remove an important element of flexibility. For example, in a sexual harassment case, it might not be considered appropriate or the parties to the case may prefer not to include information in the final decision or determination. At the same time, the provision ensures that the parties may require reasoned decisions from the director or the Labour Court if they so wish.
I still believe a person should be entitled to obtain the reasons. All we ask is that they be given to the people directly involved. It should not be subject to the director or the Labour Court thinking it fit.
While the equality officers and the Labour Court are not obliged to give their decisions in writing or to give reasons for those decisions under the 1974 Act or the 1977 Act, they usually do give their reasons. There is no reason to believe that this practice will not continue. In addition, parties to a dispute will for the first time be able to request such reasons.
I accept there is an improvement but perhaps there should be further improvements. However, I will not press the amendment in this case.
Amendment, by leave, withdrawn.
Section 86 agreed to.
Sections 87 to 97, inclusive, agreed to.
SECTION 98.
Amendments Nos. 96 and 97 are related to amendment No. 95. Amendments Nos. 95, 96 and 97 may be discussed together. Is that agreed? Agreed.
I move amendment No. 95:
In page 73, subsection (1)(a), line 28, to delete "£1.500" and substitute "£10,000 in the District Court and £30,000 in the Circuit Court,".
The penalties in this section are extremely low. The fine of £1,500 on summary conviction should be increased. The seriousness with which we view this legislation should be reflected in the penalties imposed if somebody is found guilty of an offence under a provision of the Bill. The punishment should be more than that provided for in the Bill. The Minister of State wishes to ensure that the legislation is implemented in a positive way and that the equality authorities will work positively with firms, organisations and individuals rather than use a punitive approach where that can be avoided. However, if offences occur, they should be dealt with seriously and the amendment proposes a heavier fine than that provided for in the Bill.
The offences created in the Bill deal with serious breaches of the principle of equality, the deliberate obstruction of the director of equality investigations and the Labour Court in the execution of their statutory functions and with other significant matters. The level of fine and term of imprisonment specified in the section were in line with or in excess of the scale of penalties in comparable legislation at the time of drafting. These were the maximum levels a year ago but between now and Report Stage we will check if the levels have changed in the interim. We are anxious to provide for strong penalties.
I will put the amendment down on Report Stage when we can discuss it again.
Amendment, by leave, withdrawn.
Amendments Nos. 96 and 97 not moved.
Section 98 agreed to.
Section 99 agreed to.
SECTION 100.
I move amendment No. 98:
In page 75, subsection (3), line 27, to delete "As" and substitute "Before, and as".
This amendment seeks to ensure that a person is informed beforehand if a reference is being struck out. If, for example, one is summoned to court, one is usually informed beforehand rather than as soon as is practicable. The notice should be given before rather than after striking out a reference.
The principal difficulty with regard to giving notice in writing to complainants about the striking out of a reference is that it is not always possible to locate them. Often the reason for the lapse in pursuing a case on the part of a complainant is connected to a change in location, perhaps even to emigration. In applying the powers conferred by this provision, the Labour Court will be required to have regard to the principles of natural justice and good administrative practices. Indeed, it is the current practice to notify a complainant, if contactable, of the intention to strike out and to provide every opportunity to reactivate the action. I have no doubt that this practice will continue.
I would prefer if it were included in the legislation. However, I will not pursue it.
Amendment, by leave, withdrawn.
Section 100 agreed to.
Section 101 agreed to.
SECTION 102.
I move amendment No. 99:
In page 76, subsection (1), line 42, after "case" to insert "relating to employment as a member of the Defence Forces".
I am seeking to ensure that this refers specifically to employment as a member of the Defence Forces. A member of the FCA, for example, would pursue other activities as well as being a member of the Defence Forces. I wish to ensure that it is only in relation to their membership of the Defence Forces that they would not be able to refer the case. In other words, the provision would not be interpreted in a wider sense.
The defence forces in some other European countries permit their members to refer cases to the ordinary mechanisms that are available to civilians. Why not have that policy in Ireland? Will the Minister of State confirm that the provisions of the Bill apply to the Defence Forces and that only the mechanisms by which they are investigated are different?
All the grounds, therefore, with the exception of the disability ground which we have already discussed, apply to members of the Defence Forces?
The reason I oppose the section is that there is a case for allowing members of the Defence Forces to refer cases to mechanisms that are available to civilians. It would be a precedent and would change the culture but it is being considered more often and I am anxious to record that at this stage of our discussion on the Bill.
This issue was raised in the Seanad by Senator O'Meara. I indicated that I would discuss it with the Minister for Defence. We are finalising the consultation process and I hope to have a positive resolution and an appropriate amendment in time for Report Stage. The Minister has written to Senator O'Meara outlining the position and indicating that he hopes to secure a positive resolution. I indicated that I might put down an amendment to section 75 on Report Stage.
We can refer back to both sections on Report Stage.
Amendment, by leave, withdrawn.
Section 102 agreed to.
Section 103 agreed to.
Amendment No. 100 is out of order as it is outside the scope of the Bill.
Amendment No. 100 not moved.
Title agreed to.
