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SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Tuesday, 22 Jun 2004

Equality Bill 2004 [Seanad]: Committee Stage.

SECTION 1.

Amendments Nos. 55 and 57 are related to amendment No. 1. Therefore, amendments Nos. 1, 55 and 57 may be discussed together by agreement.

I move amendment No. 1:

In page 5, after line 40, to insert the following subsection:

"(4) Part 4 of this Act and the Pensions Acts 1990 to 2004 may be cited together as the Pensions Acts 1990 to 2004 and shall be construed together as one.”.

This is a technical amendment. The provisions of the race and framework employment directives, as they relate to occupational pensions, were implemented by amendments to the Pensions Act 1990, provided for under the Social Welfare (Miscellaneous Provisions) Act 2004. In a number of cases the amendments to the Pensions Act 1990 refer to the provisions of the Employment Equality Act 1998 which are the subject of amendments proposed in the Equality Bill 2004. In accordance with legislative procedure, it was not possible in these cases to refer to the provisions in question at the time of the passing of the Social Welfare Act and I now move these consequential amendments to that Act, as it amends the Pensions Act, as provisions in the Equality Bill.

Under the amendments proposed, the new section 62 to the Equality Bill will amend the relevant references in sections 65, 81E, 81F, 81H, 81J and the Fourth Schedule of the Pensions Act 1990. Consequential amendments to the Long Title of the Bill and to section 1 to take account of the new provisions are also proposed. This covers the other two amendments.

Amendment agreed to.
Section 1, as amended, agreed to.
Section 2 agreed to.
SECTION 3.

I move amendment No. 2:

In page 6, paragraph (a)(i), lines 40 to 45, to delete all words from and including “, but” in line 40 down to and including “persons” in line 45.

This amendment deals with the nub of the Bill. If there is to be equality, we need to have it across the board. Lines 40 to 45 of section 3 give an opt-out clause for people who are employing somebody in their home. It allows them disregard entirely the equality legislation. It in effect tells such employers that they can treat such people as they wish and they need not have any regard to equality in terms of conditions, facilities, rates of pay, etc.

We should not tolerate this. The largest source of employment for women is probably work in other people's homes, some of which is in the black economy. A great many women are involved in such employment. Considering inequality cases that have been taken and complaints that have been made, the largest number of complaints come from this vulnerable group. Many of them are in such employment because they need an extra few bob that they can call their own or they are not getting enough resources at home to keep the family going. These women are in the work place of necessity. They may well be very vulnerable. In this legislation the Minister is giving an opt out to employers in that situation. It is for that reason I propose that we delete that part of the section which defines an employee. There is a strong case to be made for this amendment. If this legislation is to mean anything and address many of the inequalities and difficulties in this area, this is an amendment I hope the Minister will take on board.

I support Deputy Paul McGrath's amendment. As he stated, many workers, and particularly women, are vulnerable. The Deputy made very valid points.

I also support amendment No. 2 in the name of Deputy Paul McGrath.

Deputy Paul McGrath was incorrect in stating that people in these circumstances can be treated in any way as regards conditions of pay, hours of work, etc. That is not the case. That was the case under the legislation as originally drafted but I listened carefully to what Members stated in the Seanad. If one looks at the definition again, one will see that the only permitted discrimination - if one wants to call it discrimination - is confined to access to employment. One cannot discriminate in terms of conditions of employment. This is an important distinction.

The directives recognise the right to privacy and, in the interests of privacy, some types of employment in the family home can in certain circumstances be restricted to certain types of individuals. That is reflected in sections 25 and 37 of the 1998 Act. This represents a substantial dilution of the exclusions in sections 25 and 37 of the original Act. It hugely narrows the exclusion that can be provided for.

The official note before me states:

The directives recognise and provide for the need to permit differences of treatment based on the characteristics related to any of the discriminatory grounds, where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

General application of this principle is reflected in the new provisions proposed in respect of sections 25 and 37 of the Employment Equality Act 1998, provided for under sections 16 and 25 of the Bill. Under section 26(2) of the 1998 Act, discrimination in employment on the gender ground is permitted where, "it consists of the performance of services of a personal nature, such as the care of an elderly or incapacitated person in that person's home, where the sex of the employee is a determining factor." Under section 37(5), discrimination is permitted in employment generally in private households across the eight other grounds. The new provision in section 3 will replace those exclusions with a much more limited provision.

I am still not happy with the Minister of State's response. In effect he is saying that he will restrict but not eradicate the current scope for extensive discrimination against people working in homes. That is not satisfactory.

This Legislature has the responsibility to ensure that we provide for equality across the board. The Minister of State is suggesting that we will not have total equality even with this Bill. Surely he must go a step further to ensure that the Bill is neutral in that sense and that by imposing a blanket ban, it does not allow for any form of discrimination. The Minister of State has committed himself to a total ban on discrimination, so surely he can go that further step in regard to this section. This is at the heart of the Bill and in terms of defining what is meant by the word "employee". In view of this, the Minister of State must reconsider this.

I do not accept that we are allowing discrimination against people in private households in terms of pay, conditions and so on. We are only talking about discrimination in terms of applying for and getting a job in the private household. If we were to go along the lines suggested by Deputy McGrath, it would mean, for example, that an elderly lady who wanted somebody to look after her on a personal basis and do work of a very personal nature for her would be obliged to leave the position open to a man as well as a woman even though she may want a woman to do the job. That is just one simple example.

The directives recognise this. As far as going one further step is concerned, I have taken two very substantial steps. First, I have cut out discrimination in regard to conditions of employment. I have only allowed discrimination, if one wants to call it that, at the point of access, or getting the job, for the reasons stated. Second, I have substantially modified the exclusions in the 1998 Act. As I recall it, and from my research, there was no opposition to these exclusions during the Dáil or Seanad debates on the 1998 Act. We have come a long way since then and have narrowed those exclusions very substantially. However, I must at least take some account of the right to privacy, so I cannot go any further.

Nevertheless, the Minister of State is conceding that there is still scope for discrimination. He is not telling us what personal services for persons resident in the home might be. For example——

It is defined.

Yes, as services in loco parentis, a term which means acting in the place of a parent. What kinds of services are those? Does it involve, say, cleaning services provided in a house, the preparation of food and that kind of thing? The Minister of State mentions the case of elderly persons who would wish to chose the sex of the personal attendant looking after them and their personal hygiene and so on. None of us would argue against that. A person must be able to choose someone of the sex which best suits.

However, this provision is left open, and the Minister of State is allowing an out for persons who are employed in family homes. They can, in effect, decide themselves what is going to happen. We know from many of the cases that have been cited how people will be treated. In view of this I disagree with the Minister of State's approach here.

If Deputy McGrath agrees that what I am saying is correct, then I must frame the legislation in these terms. I cannot accept the Deputy's amendment because I would not then be able to do what the Deputy admits to be correct. In so far as personal services are concerned, we all know the situation with legislation. What I say here will not have any relevance in a court of law, but what we intend to convey by the term "personal services" is bathing and cleaning somebody, something in the nature of the role of a personal attendant, as the Deputy rightly says.

I do not think that somebody cleaning the house would fall into the category of personal services.

We cannot have an Act which takes 2,000 sections to define every word of every definition. There is an Equality Tribunal to decide these things. Judging by the performance of the Equality Tribunal to date, it is very conscious of its responsibilities and has interpreted the two existing equality Acts in a responsible manner and with a view to looking after the interests of complainants.

I have come a long way already since the debate began in terms of this section and have gone as far as I can realistically. It would not be right for me to say that I will reconsider this between now and Report Stage. If I intended to do so I would say so, but I do not see how I can.

Amendment put and declared lost.

Amendments Nos. 3 and 14 are related and may be discussed together by agreement.

I move amendment No. 3:

In page 7, paragraph (a)(iii), between lines 15 and 16, to insert the following:

" ' "collective agreement" means an agreement between an employer and a body or bodies representative of the employees to which the agreement relates;".

The purpose of this amendment is to insert a new subsection 7(a) in section 34 of the 1998 Act to clarify that for the purposes of section 34(7) of the Act, the term “relative seniority” may be determined at the time of recruitment of employees, having regard to their respective ages, where all other matters are equal, and providing, of course, that it is accepted in a collective agreement which is in place.

This provision is in compliance with Article 6 of the framework employment directive. The effect of this amendment is to provide for the continued validity of certain age-related provisions where they have been agreed collectively by employers and employees. It is recognised that situations will arise in the employment of staff where it maybe difficult to determine relative seniority based on length of service. This could be the case, for example, where a number of staff are recruited simultaneously to the same category of post or employment. In such cases a tie-breaker situation can arise where the tie-breaker agreed between staff and employers in the context of a collective agreement is based on the relative ages of the employees at that time. It is appropriate to exclude such agreed arrangements from unlawful discrimination under the Act and it will continue to be open to employees and employers to change any such arrangement at any time the wish. In the context of the amendment of section 23, and for the sake of added certainty as to its intention, I propose a consequential amendment in section 3(a)(iii) to define the term “collective agreement.”

On the question of non-discrimination on gender grounds, the Minister of State spoke at a conference which I and others attended and where women spoke of how they perceived themselves to be discriminated against in respect of pension payments on grounds of age. Is that dealt with in this amendment?

No. The amendment provides for situations such as in the case of a public company such as Aer Lingus where a number of people can be taken on as pilots at the same grade on a particular day. If there is a collective agreement between the employer and the unions representing the workers in Aer Lingus, seniority for the purposes of pensions and increments can be determined by the age of the individual when they are taken on. They are granted this age provision by virtue of the collective agreement and that is not regarded as discrimination for the purposes of the equality legislation. It does not affect the situation to which the Chairman is referring. It is trying to deal with a particular situation that arises in respect of collective agreements. Often it is found that all other things being equal, age becomes the factor to determine seniority and other things flow from seniority.

Life expectancy of females is greater than that of males. In the case of a male and female pilot who both retire at age 60, will they receive the same pension from age 60, irrespective of the life expectancy bonus of the female?

That depends on the terms of the collective agreement in each case. When these agreements are being negotiated between employers and trade unions, I am sure those provisions are factored in.

It was the wish of the people present at the conference we attended that it be disregarded and that there be equality in payment.

There has been a major debate on that issue at European level with respect to a proposed directive emanating from the European Commission. It proposes dropping the difference in life expectancy with respect to this matter and with respect to annuities and motor insurance, etc. The insurance industry has advised me that it would be crazy and would distort the market. There has been no final agreement to date on the matter.

I am sure there has not been.

On a related point to which the Chairman referred, the Minister of State proposes to insert a short clause to provide that where there is agreement, for example, union agreement or whatever, this age differential is permitted. A strange scenario relating to secretarial assistants employed by Members arose in Leinster House as a result of the intervention of the Equality Authority. Prior to October 2002, if a Member took on a secretarial assistant in this House, she was paid on an incremental salary scale. Experience was taken into account and they could join the scale at a level commensurate with their age. However, that was changed on the advice of the Equality Authority. For example, two people took up positions within three weeks of each other. They are sitting in the same office doing the same job but one is paid approximately €100 a week more than the other.

The Minister of State cited the case of pilots. Will the opt-out clause cover these secretarial assistants who have been discriminated against in a similar manner because of the intervention of the Equality Authority? The Chairman is a city Deputy and may be aware that a further difficulty arises where one may employ a secretary with vast experience but because of this rule, she must start on the basic salary of €18,700 per annum. Many colleagues from Dublin have great difficulty recruiting secretaries as a result. Will the amendment address the recruitment of secretaries by Members and will the provision be made retrospective to deal with the anomalies that have been created by the intervention of the Equality Authority?

Is that example relevant?

No, the amendment relates to the determination of seniority where an agreement is in place, not pay. It provides for employees through their unions and employers to make a collective decision that seniority will be based on age. The amendment does not deal with the case to which Deputy Paul McGrath refers, which was changed as a result of the 1998 Act.

In the example of pilots used by the Minister of State, are they considered senior by virtue of experience rather than salary? Will this amendment mean they are all on the same salary scale for all reasons except for seniority?

No. Various consequences can flow from the interpretation of the word "senior" in terms of salary, pension rights, holiday entitlements and so on. The amendment provides that experience can determine seniority provided a collective agreement is in place.

The amendment is relevant to the case I highlighted. Secretarial assistants are employed in the Oireachtas to do the same job but experience is not taken into account in determining salary. The Equality Authority has advised that the Oireachtas cannot allow for experience.

Is a collective agreement in place in the Oireachtas?

I do not know if this is covered by union agreements. If a collective agreement is in place, will the provision apply to secretarial assistants? This will be crucial in the context of discussions involving the Houses of the Oireachtas Commission on the recruitment of new employees.

It could not apply. The amendment only applies to a tie breaker scenario where people are recruited on the same day so that they can be treated differently in terms of their age provided a collective agreement is in place that cannot be challenged under the Equality Act 1998.

Is it the case that if people are recruited on different days, this provision cannot be applied?

Is that not crazy? For example, the recruitment of pilots takes place over a period and one person working with Ryanair must work out his six weeks' notice while somebody else in the Air Corps is given permission to leave earlier. It is madness that one person will be covered while another, who may have much more experience, will not be covered because they do not start on the same day.

We are responding to a specific circumstance, having been approached by a particular public company. We understand that this circumstance arises frequently, particularly in the public sector, and the new section is a specific response to it. Laudable though it may be, the Deputy's proposal seeks to have us go beyond the provision by exempting circumstances in which people are recruited on different days or not simultaneously and to protect such persons, provided a collective agreement is in place, from having the matter challenged under the equality legislation. That is the gist of the Deputy's proposal.

I have not made a specific proposal. I am trying to tease out what the Minister of State is proposing and I have pointed out that the proposal will create much more difficulty than it will solve. Would the recruitment of doctors with similar experience be covered in the same way? We all know from experience that it is difficult to get two consultant orthopaedic surgeons to start in the same year, but if two surgeons started in the same health board on the same day, the amendment would mean no allowance could be made for additional experience in determining pay arrangements. Surely the focus should be on ensuring the job is done properly and providing for flexibility in terms of when employees begin work. I envisage major difficulties with the amendment if it is being introduced to cover the scenario to which he referred. It is not nearly tight enough and will lead to many more difficulties than it will solve. Will the Minister of State re-examine it and offer more examples to justify it?

The matter can be raised again on Report Stage. Is the amendment agreed?

I reiterate that it is recognised that circumstances will arise in the employment of staff in which it may be difficult to determine relative seniority based on length of service. This could be the case for a number of staff recruited at the same time to the same category of post or employment. In such cases a tie-breaker scenario can arise. Where the tie-breaker agreed between staff and employers in the context of a collective agreement is based on the relative ages of the employees at that time, it is appropriate to exclude such agreed arrangements from unlawful discrimination under the Act.

The Department's approach has been cleared with the Office of the Attorney General, which has advised us that the circumstances set out are sufficient to achieve the purpose for which it is intended and will not give rise to further difficulties later. I will examine the issues raised by the Deputy before Report Stage. If further changes to the legislation are required to firm it up, we have made an omission or it is found the legislation will have unintended consequences, we will rectify the matter on Report Stage.

In that context, it would be reasonable for the Minister of State to withdraw the amendment and resubmit it on Report Stage.

I will not withdraw anything. I am putting the amendment and will examine the issues raised by the Deputy before Report Stage.

Having accepted that we have made an argument which may have merit, the Minister of State proposes to ram the amendment into the Bill and hope for the best. The reasonable and sensible approach would be to withdraw it and resubmit it on Report Stage and he has the wherewithal to do so. It would not upset the legislation because it can be satisfactorily added on Report Stage.

Perhaps the commission should change the collective agreement in place to take into account the points raised by the Deputy and to ensure personal and secretarial assistants are not disadvantaged.

I wholeheartedly agree but a further difficulty would remain. Section 4 of the Houses of the Oireachtas Commission Act specifically excludes us from doing as the Chairman advises. This is the reason I am so interested in the effect the amendment would have. Will the Minister of State ask the Office of the Attorney General how the amendment relates to section 4 of the Houses of the Oireachtas Commission Act and the consequences flowing from it?

On the basis that the matter will be re-examined before Report Stage, will the Deputy agree to the amendment?

I oppose it.

Amendment put and declared carried
Section 3, as amended, agreed to
SECTION 4.

I move amendment No. 4:

In page 9, paragraph (c), to delete lines 3 to 8 and substitute the following:

"(c) Subject to such exceptions and conditions as may be prescribed, it shall not be lawful for an employer to require an employee compulsorily to retire from his or her employment on reaching a particular age if on reaching that age the employee is able and willing to continue in employment.”.

It is unfair to older people to impose a compulsory retirement age. The Minister of State may reject the amendment now but in due course the economy will require people to work longer. While I fully understand and recognise in the amendment that difficulties may arise in certain circumstances, police duties for example, we should not discriminate against people on the grounds of age.

There is a view abroad that older persons are past it but the reality is completely different. We will lose out on their employment contributions and vast experience in the workplace and society in general. People are living longer and have better health and this needs to be addressed. No compulsory retirement age is in place in the United States and I understand its system works well. We should encourage older people to remain in the workforce provided they are able and wish to do so. I know many people in their seventies and early eighties who are very sharp and well able to do their job. Many of those working outside the public sector, for example, doctors and solicitors, work until a late age.

Even county councillors do so.

As do Deputies; my father was a Member of the House until aged more than 70 years and was a good performer. It is not a good idea to impose a condition requiring people to retire on reaching retirement age.

I strongly support this important amendment because it relates to an ongoing debate in modern society about the role of older people. Society underestimates and undervalues older people. I am concerned that the inclusion in legislation of provisions on compulsory retirement will force people of a high quality out of the workforce. I have no problems if people want to retire early as choice should always be available but it is important that those who want to continue to work beyond the age of 65 years are allowed to do so.

We must also take on board the broader health issue. We need to wake up to the reality that active people and those with active minds tend to be healthy. Older people make a major contribution to the community sector, notably in working with people with intellectual disabilities and vice versa - it is a two way process. The bottom line is that if a person is willing and able to continue in employment, he or she should be given a choice. Our older people are a hidden resource and the amendment recognises this.

Does the Minister of State share the Minister for Justice, Equality and Law Reform's view that inequality is good for society and is a necessary evil in a market economy? We are discussing equality and it would be nice to hear the Minister of State's views.

The Deputy is making a Second Stage speech. That issue is not up for discussion. With regard to the compulsory retirement age, does the spirit of the amendment contradict the Finance Act 2004, which provided that public servants could work beyond the age of 65 if they were able and competent and of benefit to the State?

Deputy Moynihan-Cronin's father was an excellent performer in the House when he was in his 70s. The age of 66 is not necessarily a cut-off point in terms of ability. A number of councillors under the age of 66 were compulsorily retired recently. An ongoing debate surrounding social partnership relates to how much control the Government should have over the country's destiny in conjunction with the social partners. That goes to the heart of the amendment.

Section 34(4) of the Employment Equality Act 1998 provides that, "Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement, whether voluntary or compulsory, of employees of any class or description of employees”. Acceptance of the amendment would require the deletion of the subsection. While the framework employment directive does not require it, the question of removing section 34(4) was raised with the social partners and relevant Departments.

While recognising the labour force is ageing and the participation of older workers should be facilitated, a consensus emerged during consultations that this issue goes beyond employment equality policy and has broad socio-economic and industrial relations implications. Compulsory retirement ages are a feature of many types of employment in both the public and private sectors. They have been agreed over time and, in many cases, following collective bargaining negotiations. The removal of existing agreements or arrangements in private sector employment with respect to compulsory retirement ages is a matter first for discussion between the social partners. On the other hand, with respect to public service employees, excluding those in commercial State bodies, the recently enacted Public Services Superannuation (Miscellaneous Provisions) Bill removes the compulsory retirement age for new entrants. New entrants to the public service will not be subject to a compulsory retirement age. The removal of the compulsion to retire at a specified age in the private sector is still under discussion between the Government and the social partners.

This is equality legislation. The public service will be dealt with completely differently to the private sector. That does not represent equality. My amendment will not create major difficulties because, in the majority of cases, people will retire. However, some older people still feel they have a great deal to contribute and they should have the opportunity to do so. Elderly people will not be done a service if my proposal is excluded from the legislation.

I agree there is a difference between the public and private sectors but it is not the only one. Many employment conditions of the public sector are much different to the private sector. I acknowledge this is equality legislation but, if I accept the amendment, well intentioned as it may be, and returned to the Government with a new scenario, I would not be popular in certain quarters. I do not have authority to do so.

The Government is not popular in many quarters currently. One more would not make a great difference. The Government will regret this because in time these people will be needed to work. I must press the amendment because I have been contacted by a number of people who are aggrieved they will be forced to do something they do not want.

I support the Deputy. We are moving to an era in the public service where people can work as long as they like within reason. The recent Finance Act provided that facility. However, the legislation does the opposite and I wonder how both Bills can be reconciled.

Amendment put and declared lost.
Section 4 agreed to.
Sections 5 to 8, inclusive, agreed to.
SECTION 9.

Amendments Nos. 5 and 6 are cognate and may be discussed together by agreement.

I move amendment No. 5:

In page 12, paragraph (a), lines 23 and 24, to delete “impose a disproportionate burden” and substitute “be grossly unreasonable”.

The section amends section 16 of the 1998 Act and relates to what an employer must do to facilitate somebody who has a disability. It sets out the appropriate measures to be provided by the employer unless they impose a disproportionate burden on him or her. I am not happy with this disclaimer. What is meant by "impose a disproportionate burden on the employer"? That is difficult to define because what might appear to me or the Minister of State as a disproportionate burden on us to facilitate a person with a disability will not appear as such to the person with the disability. If it makes the difference between a person with a disability obtaining employment and providing for himself or herself, heaven and earth should be moved to facilitate such a person.

I am concerned that it would be easy to imply a disproportionate burden was placed on me if I did not want to take on a person with a disability rather than having the onus on me to take on such a person. I would substitute the words "impose a disproportionate burden" with the words "be grossly unreasonable"? The word "grossly" is important. It must be proved beyond doubt that the facility could not be provided. I hope the Minister of State accepts the amendment as it addresses an opt-out for the employer in the form of the term "disproportionate burden". I hope he sees reason even at this late stage.

Deputy McGrath proposes changing the terminology in section 9(a)(3) from “unless the measures would impose a disproportionate burden” to “unless the measures would be grossly unreasonable”. The difficulty here is that when the primary legislation, the Employment Equality Act 1998, was being drafted, requirements accommodating people with disabilities were included. A restriction had to be imposed on the extent to which employers would be compelled to accommodate people with disabilities due to a Supreme Court decision.

The Supreme Court decided that one cannot impose a burden on an employer if it involves more than a nominal cost. That is as far as we were allowed to go constitutionally. As members know, we cannot pass legislation which overrules the Constitution. A European directive can overrule the Constitution and it seems to me that a "disproportionate burden" is a much more generous provision. We can argue as to how much more generous it is but it is more generous and more liberal than a "nominal cost".

The terminology, "disproportionate burden", does not come from the Department of Justice, Equality and Law Reform. It is the terminology used in the directive, which goes on to give indicators of what is meant by that term. That is the terminology we have used and we have taken the pointers suggested by the framework directive to clarify, insofar as we can, what the term "disproportionate burden" means in this context.

We are going beyond what was originally allowed by the Constitution, according to the Supreme Court, and, in the interests of precision, it would be best to go along the lines suggested in the framework directive. We can argue about this all day but I do not share Deputy McGrath's view that there is much difference in the terminology "grossly unreasonable" and "disproportionate burden". In terms of precision I prefer to follow what the directive says.

We could debate the point all day. My amendment would improve matters because it would delete the words "impose a disproportionate burden" on the employer and substitute with the words "be grossly unreasonable". In what way is something a "disproportionate burden"?

There are a number of guidelines.

Is it in terms of a financial burden?

Is it a burden of inconvenience or a matter of the ongoing support that might be needed for the person with a disability? These are points the Minister of State should clarify. If the term is imposed directly from the EU directive has it been specifically defined? Will the Minister of State elaborate on this or perhaps provide examples of what may be meant by the imposition of a disproportionate burden on an employer?

To answer the Deputy's main point, the terminology is not defined in the directive but that section of the directive gives a number of pointers. It appears to me that it means a financial burden. We have written those pointers into the legislation at paragraph (c) on page 12, which provides that in determining whether the measures would impose such a burden - that is, a disproportionate burden - account shall be taken in particular of the financial and other costs entailed, the scale and financial resources of the employer’s business and the number of people who would benefit. For example, if we look at the possibility of obtaining public funding or other assistance, then it appears to me that the financial consideration is what is envisaged.

It is a judgment matter in every case. There is a statutory obligation on employers to provide appropriate facilities to employ people with disabilities provided it will not impose a disproportionate burden of cost. The Deputy asked for examples but it is an individual judgement call. For example, if I am managing director of a large private company which employs 1,000 people with a turnover of billions of euro then it would not be unreasonable to expect me to spend a couple of million euro or more on appropriate facilities for disabled people. On the other hand, if I have 20 staff and my business is struggling to pay VAT bills every year then I would be expected to spend much less. It would be useless for me to say that someone with a turnover of X should spend Y. That would not mean anything. It is for the Equality Tribunal to consider the merits or each case separately.

This will revolve around whether or not the employer has the will to act. If someone with a disability has employment opportunities in the city centre he or she may need to drive into work in a car adjusted for them. Would it be sufficient for an employer to say: "We do not have a parking space and therefore we cannot get you on the premises"? To what extent would the Minister of State expect such an employer to assist someone?

While this does not form part of the law, has the Minister of State discussed minimum standards he would expect employers to reach in order to facilitate those with disabilities? We need only look at the abysmal record of many Departments. There is a target of 3% employment for people with disabilities but no Department has hit that target and most fall lamentably short of it. What standards would the Minister of State maintain? What does he consider a reasonable standard to be achieved?

We are getting away from the amendment.

The essence of what Deputy McGrath is suggesting is that there should be some code of practice prepared for those in the private sector in order to deal with this matter. We will look at that. There is this legislation and the forthcoming Disability Bill will also provide for these matters in some detail. We will look at this matter and I will discuss it further with the Deputy on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 12, paragraph (a), line 26, to delete “impose such a burden” and substitute

"be grossly unreasonable".

Amendment, by leave, withdrawn.

Amendments Nos. 7 to 10, inclusive, are related and may be discussed together by agreement.

I move amendment No. 7:

In page 12, paragraph (a), line 30, after “business,” to insert “and”.

These amendments tend to achieve some of the goals outlined by Deputy McGrath a moment ago. They seek to narrow the excuses or alibis an employer has for declaring something a disproportionate burden. The official notes state that their purpose is to bring the amendments to section 16(3)(c) of the 1998 Act more closely in line with the provisions of the framework equality directive, as proposed by several Senators on Committee and Report Stages in the Seanad and repeated by several Deputies on Second Stage in the Dáil.

The framework employment directive makes specific reference to financial and other costs entailed, including the scale and financial resources of the employer's business. In establishing the level of measures an employer should be required to take to meet the needs of employees with disabilities, I accept it is preferable to adhere closely to the exact provisions of the directive. Consequently, in this amendment, I propose the deletion of factors three, four, five and six in section 9. These would have enabled employers to argue that the burden imposed would be disproportionate. The amendments are introduced to aid the person with disabilities. In this I am responding positively to suggestions made in the Seanad and from the Opposition benches in the Dáil on Second Stage.

The fact the Minister of State listened to the Second Stage debate is commendable and he deserves full credit for removing these factors. As we said, we should adhere as closely as closely as possible to the directive and it is regrettable the rest of the Bill does not do likewise. For example, it fails to properly incorporate the directive in respect of indirect discrimination. We will tease that out later.

Excellent.

Amendment agreed to.

I move amendment No. 8:

In page 12, paragraph (a), to delete lines 31 to 37.

Amendment agreed to.

I move amendment No. 9:

In page 12, paragraph (a), line 39, to delete “assistance, and” and substitute “assistance.’,”.

Amendment agreed to.

I move amendment No. 10:

In page 12, paragraph (a), to delete lines 40 and 41.

Amendment agreed to.
Section 9, as amended, agreed to.
NEW SECTION.

I move amendment No. 11:

In page 13, before section 10, to insert the following new section:

10.- Section 16 of the Act of 1998 is amended by inserting the following subsection:

'(7) Nothing in this section shall operate to discharge an employer from his or her obligations to provide full and equal access of employment to persons with disability.'.".

This amendment proposes to insert a new section after section 10. Section 9 goes too far in relieving employers of their duties to adapt their premises for disabled people. The amendment ensures that section 16 of the 1998 Act cannot be used to justify an action on the employer's part. It is essential that employers' premises and other premises are adapted to facilitate people with disabilities.

The legislation in place provides that new buildings must be adapted to suit people with disabilities. However, there is a host of existing buildings which have not been adapted. Some of them are difficult to adapt, including Leinster House and public offices generally. We must make strides in regard to providing access for people with disabilities. If one looks around the Minister of State's city of Limerick or the town of Mullingar, one sees a vast array of buildings on the main streets which are inaccessible to people with disabilities. A large number of restaurants, public houses and the like do not have wheelchair accessible toilets, which people in wheelchairs can use. This imposes a huge restriction on people with disabilities in terms of where they can socialise, where they can go with their friends and so on. It is an issue we must address. The amendment seeks to ensure, as far as possible, maximum access for people with disabilities.

I support the amendment. This issue came to mind this morning when I was travelling by train. There was somebody in a wheelchair. While a number of seats in the carriages have been taken out to provide for people in wheelchairs and while new carriages will have proper facilities, unfortunately, the person in this case was not able to use the facilities because the toilets were too small and the wheelchair would not fit inside. That is happening everyday. We, as politicians, are aware of it and should seek to address it.

There is a proposal to build a new town hall in Killarney where the majority of the offices are upstairs. There is no way for people with disabilities to access them and they must use a telephone line, which will be provided downstairs but only after a big row with officials. A simple solution would have been to provide a room downstairs where officials could meet the people. I know the Minister of State will agree with me and Deputy Paul McGrath that there are still significant difficulties facing people with disabilities in doing ordinary, everyday business which we take for granted. If there is no voluntary action taken to address these problems we will have to ensure it is a requirement.

I am sure the Minister of State is making great strides to address the situation.

There is little that Deputy Paul McGrath or Deputy Moynihan-Cronin have said with which I can disagree. Something needs to be done here and action is urgent. This issue will be dealt with specifically in the Disability Bill which will be accompanied by six different framework plans from six Departments with specific timescales, etc., provisions for implementation, provisions to ensure people who are supposed to act do so and so on. In the circumstances I cannot introduce these provisions here. I understand and accept the spirit of the amendment, but I cannot accept it.

Section 9 amends section 16 of the 1998 Act. As a result of discussions with the social partners and so on, although not directly as a result, section 16 of the 1998 Act puts certain obligations on employers to accommodate people with disabilities. However, it is not an open-ended requirement, as we already discussed. The Supreme Court restricted it initially to the imposition of nominal cost. The European Union has come to our assistance for once in this regard and has extended the imposition to mean a disproportionate burden. That is the balance that has been struck in this section. The matters referred to will require strong commitment and much resources. These matters will be central to the Disability Bill and that will provide the forum to address them.

When will it appear?

It will appear before the next session of the Dáil. The Deputy should not worry.

The Minister of State and members of the committee would agree that if we knew what was in the Disability Bill, some of these amendments would not have to be tabled.

Touché. I take that point but I am telling members in a general way that this specific issue about public buildings, railway carriages, etc., will be dealt with in the Disability Bill. I give members that assurance.

When will it be published?

As I said to Deputy Ó Snodaigh, it will be published before the next session of the Dáil.

Amendment, by leave, withdrawn.
SECTION 10.

I move amendment No. 12:

In page 13, paragraph (a), to delete lines 14 to 28 and substitute the following:

" '(2) Nothing in this Act shall render unlawful any action taken in accordance with the Employment Permits Act 2003.',".

This amendment arises from various comments made in the debate thus far. Article 3.2 of the Race Directive excludes nationality from its scope. The intention in section 10 of the Bill in amending sections 17(2) of the 1998 Act is to provide for the exclusion from the scope of the Act actions taken in accordance with the Employment Permits Act 2003 which regulates the employment permits regime in respect of nationality. As this intention appears to have been insufficiently clear in the wording as originally proposed in section 10, paragraph (a), I now propose this amendment, which provides a revised and simplified text for insertion as section 17(2) of the 1998 Act. It has been pointed out that the section, as originally drafted, was vague and could go beyond the Employment Permits Act of 2003 which is all we intend, in effect, to regulate. The purpose of the amendment, therefore, is to confine the exemption to the Employment Permits Act 2003.

Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 and 12 agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."

Reference is made in this section to section 22 - indirect discrimination on the gender ground - of the Employment Equality Act 1998. It should probably read, "indirect discrimination on all grounds". It should not just be in the case of gender grounds. The same argument applies later in the Bill but in this case we should not be specific.

Can we consider that the Deputy may table an amendment on Report Stage?

The other grounds are dealt with in a later section.

No doubt they arebut there is no harm in inserting it in this part of the Bill to ensure that it is covered.

If the Deputy wants to submit an amendment for Report Stage, I will look at it.

Question put and agreed to.
Sections 14 and 15 agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."

I am opposed to this section being included in the Bill because it makes huge inroads into the current ban on sex discrimination in the workplace. Under section 25 of the 1998 Act, sex discrimination is only a legitimate requirement in certain limited situations, such as theology, entertainment, duties outside the State, ambassadors, personal services and separate sleeping facilities. However, under the new Bill any ground could justify sex discrimination if it is an occupational requirement. This is regrettable. Why does the Minister of State feel it is necessary to change this section?

My intention in introducing this change is to narrow the exclusion. I am doing so because I have been advised by the Office of the Attorney General that the blanket exclusion in section 25 of the 1998 Act is no longer permissible under the terms of the directive. The section contains the wording that has been suggested. The official note states:

Section 16 of the Bill replaces in its entirety section 25 of the Employment Equality Act 1998. In accordance with Article 26 of the Gender Equal Treatment in Employment Directive, member states may provide that, in relation to access to employment or to training leading to employment, a difference in treatment based on a characteristic related to sex shall not constitute discrimination where - by virtue of the nature of the particular occupational activities concerned, or of the context in which they are carried out - such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement proportionate.

The gender provisions of the Employment Equality Act do not contain an exclusion of this nature restricted to occupational activities necessitating the employment of a person of a particular sex. Section 16 of the Bill remedies this by replicating Article 26 of the directive. I am advised by the Attorney General that the blanket type exemptions provided for in section 25 of the Act are not permitted by the directive. The Office of the Attorney General states that section 25 can no longer operate in accordance with the Gender Equal Treatment in Employment Directive because the exemptions are drafted too broadly. The provisions in the Bill replicate fairly closely the wording of the directive and I am advised that it is much narrower than the original section 25.

I will withdraw my objection to the section. Will the Minister of State send me the note concerning it?

Certainly.

Question put and agreed to.
Sections 17 to 20, inclusive, agreed to.
SECTION 21.

I move amendment No. 13:

In page 16, line 23, to delete "deleted" and substitute "repealed".

According to the terminology used, section 32 of the 1998 Act will be deleted. However, "deleted" is an outmoded word. The word "repealed" might be better in this context, although it has historic connotations also.

The Deputy is seeking modernity.

In the interests of modernity I will accept the amendment.

Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill."

Section 22, which amends section 33 of the 1998 Act, states: "Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality and practice between employees,..." This should be strengthened because a statutory obligation must be imposed on employers to engage in positive action in the workplace. A major weakness in Ireland's current equality legislation is its reliance on an individualistic model of justice, whereby discrimination must already have occurred and an individual must be willing to pursue an anti-discrimination case. I will table an amendment on Report Stage to add, after the word "employees", "which employers must undertake to address underlying inequalities". It places the onus on employers to take this positive action in the first instance.

Notice is given of the Deputy's intention to table an amendment on Report Stage.

The directive allows us to provide for positive action, although it does not compel us to do so. If the Deputy wishes to table an amendment on Report Stage, I will examine it.

Question put and agreed to.
NEW SECTION.

I move amendment No. 14:

In page 16, before section 23, to insert the following new section:

23.-Section 34 (savings and exceptions related to family, age or disability) of the Act of 1998 is amended-

(a) by substituting the following subsections for subsection (3):

'(3) In an occupational benefits scheme it shall not constitute discrimination on the age ground for an employer-

(a) to fix ages for admission to such a scheme or for entitlement to benefits under it,

(b) to fix different such ages for all employees or a category of employees,

(c) to use, in the context of such a scheme, age criteria in actuarial calculations, or

(d) to provide different rates of severance payment for different employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving the employment and his or her compulsory retirement age, provided that that does not constitute discrimination on the gender ground.

(3A) In subsection (3)-

"occupational benefits scheme" includes any scheme (whether statutory or non-statutory) providing for benefits to employees or any category of employees on their becoming ill, incapacitated or redundant but does not include any occupational pension scheme providing for pensions, gratuities or other allowances payable on retirement or death;

"severance payment" means a sum paid voluntarily by an employer to an employee otherwise than as pay when the employee leaves the employment.'. and

(b) by inserting the following subsection after subsection (7):

'(7A) Nothing in this Act invalidates any term in a collective agreement, whenever made, to the effect that in particular circumstances, where length of service would otherwise be regarded as equal, seniority in a particular post or employment may be determined by reference to the relative ages of employees on their entry to that post or employment.'.".

Amendment agreed to.
Section 23 deleted.
SECTION 24.

I am informed that amendment No. 15 is out of order as it is effectively a direct negative.

As we are on Committee Stage, I think we can debate it briefly at least.

The amendment proposes deleting the word "unlawful" and substituting the word "lawful" in the text being inserted into the 1998 Act. The effect of the amendment would be to completely reverse the meaning of the new subsection. The amendment must, therefore, be ruled out of order as it amounts to a direct negative.

I am afraid I do not understand that, Chairman.

It must be because it is Tuesday or something.

Some of these things are sent to try us.

I thought the purpose of Committee Stage was to go through a Bill, examine Government amendments and move whatever amendments we think might be appropriate to the legislation. I thought that was what we were doing.

I am informed that the standing orders do not allow amendments which are direct negatives.

I see. We will not consider it in that way then.

Amendment No. 15 not moved.

I move amendment No. 16:

In page 17, between lines 41 and 42, to insert the following:

"(c) by inserting the following new subsection:

'(7) A different rate of remuneration paid pursuant to subsection (1) shall not be below the level of the National Minimum Wage in force at that time.'.".

Amendment, by leave, withdrawn.
Question proposed: "That section 24 stand part of the Bill."

I wish to discuss the words "lawful" and "unlawful", referred to in amendment No. 15. Section 24 proposes to amend section 35 of the 1998 Act, which provides that people should be paid equally. The net effect of what is proposed in respect of section 35 is that we do not have to pay people with disabilities at the same rate as others. Section 24 of the Bill, at paragraph (a), states:

Nothing in this Part I or Part II shall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done or which could reasonably be expected to be done during that period by an employee without the disability.

Am I in order to allow discussion on this?

It is up to you, Chairman. I would say you are.

The Deputy may proceed as we are discussing the section rather than the amendment.

Thank you, Chairman, for your forbearance. The Chairman has rightly recognised that this is a very important section which goes to the core of disability, equality and whether people are being treated fairly or not. If someone is able to do a job and he or she is being paid for it, the Minister of State now proposes that there can be different rates of pay for people in the workplace, depending on whether they have a disability. The relevant provision is ambiguous, nevertheless it allows that if the amount of work done by an employee with a disability is less than that which one would expect an employee without the disability to do, an employer can pay people different rates. I do not know how that is to be measured or how it will be implemented in the workplace.

In that context I refer to a person in my area who was laying footpath kerbstones for the local authority. He had a team of people with him and averaged six kerbstones per day when the engineer contacted him to say he did not think he was doing enough. The contractor shook up his team and they achieved eight kerbstones per day. However, the engineer again told them he did not think they were doing enough and the team pushed its work rate up to ten kerbstones per day. The engineer continued to pursue the contractor but could not get the work rate any higher than ten kerbstones per day. It should be noted that in the private sector a similar team might lay 100 kerbstones per day. The net outcome was that the county council decided to terminate the employment of this person. However, the matter was brought before a rights commissioner and the man was re-instated.

This section will legitimise people doing similar jobs at different rates of pay, simply because one person has a disability. The Minister of State proposes to relate this to work rate and output. However, on any production line in this country, regardless of whether people are manufacturing tennis balls - as people used to in Mullingar - or laying blocks, they have different rates of performance. Some people will be better than others. To prove that, we need only examine ourselves in this House. Different Members have different abilities to do different things. Despite this, the Minister of State proposes to allow employers to discriminate against people with disabilities on the basis that, for example, a study indicates that they are not producing enough tennis balls or blocks. This is unfair.

People with disabilities used to be eligible to receive a State subsidy for work. A grant was paid to employers to enable them employ a person who could not achieve the same output. Is that scheme still in existence? If people are doing what seems to be a similar job, the Bill proposes that if one person is not delivering the same productivity, the employer can pay him or her less. Is there not a great deal of dignity to be given to people by paying them all at the same rate for broadly similar work? I am concerned that this section will legalise paying people at different rates. I wish it could be done differently because it is not fair as currently proposed. It will have serious implications for people with disabilities and will hark back to the bad old days of, as my mother used to say, "throwing them a sup", meaning that one gives people something to keep them happy and shut them up.

Are we not creating a danger, particularly when the legislation seeks to amend a provision in the 1998 Act by means of a direct negative? What did the Minister of State find in the original legislation that cased such problems? What examples does he have? Were representations made to the Minister by employers organisations to reverse what was contained in section 35 of the 1998 Act and what is the motivation behind the move?

Surely, preserving a person's dignity is sacrosanct. Like myself, several members of the committee were teachers in another life and one of the lessons we learned as trainee teachers was that people must be treated equally. One must encourage people and bring them along in such a manner. This section seeks to legitimise discrimination against people with disabilities. It is totally unjust and should be deleted.

There are two amendments in the Deputy's name. One relates to the different rate of remuneration paid pursuant to subsection (1) which shall not be below the level of the national minimum wage in force at that time.

That is amendment No. 16.

Are we not discussing both amendments together?

No. We could have but the Deputy did not address that amendment.

I point out to Deputy McGrath that I have already taken on board suggestions by his colleague, Senator Terry, on Committee Stage in the Seanad and have included it.

I note the reference to the minimum wage and that the provision shall not affect it. That is a positive in that it will only affect those who would normally be paid in excess of the minimum wage. However, the Minister of State is allowing the whole concept of——

I first wish to address the Deputy's concerns.

In regard to the Deputy's comments about legitimising payment of a lesser amount, I am not doing so. It was legitimised, as I recall without any great opposition, in the 1998 Act. We are not responding to representations from employers or anyone else to expand the exclusion. Rather, the intention of this section is to narrow the exclusion.

The first of the Deputy's amendments removes what is an intentionally enabling provision from the 1998 Act and replaces it with an inflexible and dogmatic approach. Section 24 of the Bill is a strengthening of the provision in section 35(1) of the Act and provides added safeguards to ensure that different rates of remuneration may be paid only be reference to a lesser output of work in a particular period of time.

Disability is a discriminatory ground under the Act. In addition, section 16 of the Act, which has also been strengthened by the Bill, requires employers to accommodate the needs of people with disabilities in the workplace. However, where an employee would still be unable to participate in employment without some further accommodation above and beyond the scope of section 16, section 34 allows an alternative arrangement to be entered into.

This is already legitimised and accepted in section 35 of the 1998 Act. In effect, it provides that an employer is allowed, without any sanction under the equality legislation, to pay people with disability a different rate of remuneration. We are trying to tighten that up to prevent abuse by providing that an employer can do so only if output can be measured over a given period. That has to be done objectively and it is a matter for the Equality Tribunal to decide whether it can be done legitimately. In this enabling provision, we are trying to put ourselves in the minds of employers and trying to encourage them to employ people with disabilities. When an employer advertise a job or jobs there are usually more applicants than the number of jobs. In general the employer will employ able-bodied people because those with disabilities will not be able to work as well. However, if there is a provision allowing for the accommodation of people with disabilities it will encourage employers to take on such people. It is not intended to punish those with disabilities or to treat them as less equal, but simply and solely to encourage employers to employ them. It is an incentive for employers to take on people with disabilities whom I want to see gainfully employed, for the sake of society and their own sake.

With legislation such as section 35 of the 1998 there is always the danger of abuse. People are not perfect, but in this instance we have moved as far as we possibly can to eliminate that abuse. We have taken on board a useful suggestion from the Deputy's colleague, Senator Terry, whom I commend, not to allow people be paid less than the national minimum wage. Second, we are trying to restrict it so that there will be some objective way of measuring output. If, for example, a person can produce 100 blocks and somebody else can produce 120, the average is somewhere in between. A person with disabilities may be able to produce only 40. The employer can reach an agreement with them and pay them in that regard. It is not intended to get at those with disabilities but to help them find a place in the workforce.

One speaks about Deputies, teachers, lawyers and so on. In the normal course an employer would not be able to avail of this provision in respect of such posts - leaving aside all that happened in the area of benchmarking. I do not believe one can measure a teacher's output and I am not sure about a politician's output.

The Minister has a different view on that.

One can measure the output of a person doing a specific or a number of tasks over a certain period on a factory floor. My intention is to confine it to that type of situation. If anybody has any suggestions to enable me tie it down better I would be delighted to hear them and, generally, I will take them on board. That is my intention.

It sounds reasonable.

I welcome Deputy O'Connor who, no doubt, will mention Tallaght shortly. What the Minister of State says is reasonable on the basis of making tennis balls or blocks as output in those areas can be easily measured. However, what would be the situation regarding telephony, where, traditionally, many people with disabilities got work? How can one measure their output with that of another person doing the same job? It would be difficult.

They could not have a different rate in that case.

I would hope that would be the case. My concern is that this provision would be used to keep people with disabilities on relatively low wages or lower wages than their counterparts when they are doing a similar job. Measuring output will be a major difficulty. While it is easy to do it in the straightforward cases referred to by the Minister of State, it will be very difficult in other kinds of work.

As I understand the legislation, if output cannot be measured employers will be unable to avail of this provision.

The Minister of State has explained the position very well.

Question put and agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill".

We received a circular from the INTO on this section. It seeks to strengthen the existing Act to ensure that action cannot be taken on any grounds other than on the grounds of religion. Section 25(2) of the Bill states: "For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) ...". I suggest that the other grounds, bar on grounds of religion, be added to ensure the section could not be availed of to discriminate or to have an opt-out other than on grounds of religion. It is an acknowledgement that there are cases where it could be necessary to remove or prevent somebody on grounds of religion from being in the employment of a certain institution or a specific denomination. Section 25 (2)(a) provides that the characteristic, referred to in section 25(2), constitutes a genuine and determining occupational requirement. I shall table amendments to that effect on Report Stage. In the meantime I ask the Minister of State to consider the single page submission from the INTO, which I can circulate.

Question put and agreed to.
NEW SECTION.

I move amendment No. 17:

In page 18, before section 26, to insert the following new section:

26.-Section 69 of the Act of 1998 is amended by the addition of the following subsection after subsection (6):

'(6A) Where an employer fails to have an equality action plan (irrespective of whether he or she had been required pursuant to this section to have such a plan) it shall be presumed until the contrary is shown in any proceedings under this Act that the employer has failed to take such steps as are reasonable to protect the employees of such an employer from discrimination.'.".

The purpose of this new section is to require employers to take positive action against discrimination and racism and not to sit back and wait to be forced to do so by the Equality Authority. Given the huge influx of foreign workers there is a greater need for this section than ever before. If we are to progress, employers should be pro active. In turn, this would have the effect of a better working environment for all those employed. I understand the Equality Authority spoke about the need for a measure to compel employers to do something to prevent racism or discrimination in the workplace against non-nationals working here.

Has the Minister considered introducing measures that employers must put in place? Instead of employees having to continually make complaints, employers should put in place a programme to ensure there is no discrimination against non-Irish workers. We all hear about incidents of discrimination. I should be pleased if the Minister of State would accept my amendment, however, if he does not, has he proposals to deal with the matter?

I agree with the spirit of the amendment. The Small Firms Association, IBEC and bodies that support employers and even small scale employers should have the wherewithal to have some form of equality action plan.

I cannot accept the amendment as drafted because under the various directives and the legislation as it stands, there is no compulsion on an employer to have an equality action plan. To make it compulsory to do so, thereby undermining any defence to a complaint in the absence of one, would be a significant imposition. My official note states:

The purpose of Part VI of the Employment Equality Act 1998 is to provide guidance to The purpose of Part VI of the employers, particularly large enterprises in taking proactive approaches to implementing equality in the workplace. Section 69 gives the Equality Authority particular powers at its discretion to invite a particular business or business group or sector to carry out an equality review or to prepare and implement an equality action plan. The Equality Authority itself, may, if it thinks it is appropriate carry out an equality review and prepare an equality action plan in relation to large employers, which are defined as people with 50 plus employees in a particular business or sector. The authority has specific enforcement powers in respect of such equality review views and action plans.

In other words, as things stand, there no independent obligation but the Equality Authority has the power to require people to do certain things and if they do not, the authority has enforcement powers to follow up on that.

However, the directives do not require the imposition of a duty on employers to prepare equality action plans. Section 69 of the 1998 Act carries out what we interpret to be the intention of the directive, but there is no intention in the section to coerce all employers to prepare equality action plans. An amendment along the lines suggested by Deputy Moynihan-Cronin to the effect that everybody must have an equality action plan, regardless of the size and scale of the operation and that if the business did not have such a plan a complaint against it would have a 99% guarantee of being upheld, would be a significant imposition.

I will give a commitment to look again before Report State at the terms of section 69 of the 1998 Act to see if we can strengthen the requirement to prepare equality action plans and give powers to the authority in that regard. I will report on the matter to the Dáil.

I thank the Minister of State. Everybody would benefit if measures were in place. There are problems and if people knew that guidelines were in place, it would lead to a better environment. I understand the Minister of State's position that such a move would represent a significant imposition.

The Minister should initiate a process on equality. I hope people will begin to realise the reason we need foreign workers. I accept that the Minister of State will look at the issue and deal with it on Report Stage. In view of this I withdraw the amendment.

Amendment, by leave, withdrawn.
Section 26 agreed to.
NEW SECTION.

I move amendment No. 18:

In page 18, before section 27, to insert the following new section:

27.--Section 51 (staff) of the Act of 1998 is amended by substituting the following subsection for subsection (3):

'(3) Each appointment under this section or section 49 shall

(a) be on such terms as the Minister, after consultation with the Authority and with the consent of the Minister for Finance, may determine, and

(b) be subject to the Civil Service Commissioners Act 1956 and the Civil Service Regulation Acts 1956 to 1996.'.".

This is a technical amendment to section 51(3) of the Employment Equality Act 1998 and is intended to clarify the application of this provision to the appointment of the chief executive officer and staff of the Equality Authority. In examining the provisions of the Employment Equality Act 1998 generally, there appears to be legal uncertainty as to whether the references to the Civil Service Commissioners Act applies to both paragraphs (a) and (b). That was the intention. The amendment will provide clarity in this regard.

Amendment agreed to.
SECTION 27.

I move amendment No. 19:

In page 18, line 37, before "is" to insert "of the Act of 1998".

This is a technical amendment to clarify that the section referred to is section 67 of the Employment Equality Act 1998.

Amendment agreed to.
Section 27, as amended, agreed to.
Sections 28 to 30, inclusive agreed to.
SECTION 31.

I move amendment No. 20:

In page 21, between lines 9 and 10, to insert the following:

"(a) in subsection (4), by deleting the opening words up to and including ’and’ in paragraph (a) and inserting:

'(4) In this Part, in relation to a claim referred under any provision of this section——

(a) “the complainant” means——

(i) the person by whom it is referred, or

(ii) where such a person is unable, by reason of an intellectual or a psychological disability, to pursue it effectively, his or her parent, guardian or other person acting in place of a parent, and', ".

This amendment is intended to improve access to and the procedural operation of the Equality Tribunal. Where a person suffering discrimination is unable to make a complaint to the director by reason of an intellectual or psychological disability, the complainant may be a parent, guardian or person acting in place of a parent. This was already provided for in relation to cases under the equal status legislation and this is bringing the employment equality legislation into line. It represents a considerable improvement.

Amendment agreed to.

Amendment Nos. 21, 22 and 24 are related and all may be discussed together by agreement.

I move amendment No. 21:

In page 21, between lines 9 and 10, to insert the following:

"(a) by the deletion of subsection (2),”.

The amendment seeks to delete the provision that a discriminatory dismissal goes to the Labour Court and not the Equality Tribunal. There is a groundswell of opinion that the tribunal should have jurisdiction. In regard to amendment No. 22, EU law provides that where there is a breach of a directive, there must be a right to sue in the courts, but under the 1998 Act this right was confined to gender cases since those were the only ones covered by the directive. As EU law has been extended, we must accordingly amend the 1998 Act, otherwise I am advised that the Bill could be struck down as contrary to EU law.

I understand this is very difficult for many organisations as they believe they have no right to appeal cases to the courts. I am proposing that the Labour Court, District Court or Circuit Court be included. I understand what the Minister is proposing is contrary to the spirit and letter of the directives, which he is aiming to implement here. I hope to address that under amendment No. 24. It is interesting that the human rights commission has also indicated the strength of feeling on the inclusion of only the Labour Court in the Bill. It believes that access to the courts of law should be included based on the strong desires of those organisations with very good track records on human rights, and rights for people with disabilities and so on. In view of this I urge the Minister of State to accept the amendments.

I agree with amendment No. 21 tabled by Deputy Moynihan-Cronin, and it will be included in one of my amendments to section 77. In other words, the Labour Court will be taken out of the equation and discriminatory dismissal cases or victimisation cases resulting in dismissal will go to the Equality Tribunal.

Amendment No. 22 seeks to extend the option which exists in gender discrimination cases to go before the Circuit Court and thereby have access to an unlimited amount of compensation for all employment discrimination cases. I do not propose to accept that amendment. The provision in respect of gender discrimination cases is a requirement under the gender equal treatment directive following the judgment of the European Court of Justice in the Marshall case, which was heard in 1993. There is no requirement on non-gender grounds under either the framework employment directive or the race directive for access to unlimited awards. In the event that the EU Council of Ministers had intended to make available equal levels of redress for gender and non-gender grounds, it was open to the Council to make such provision in the directives. However, it did not do this. The directives simply provided that sanctions must be effective, proportionate and dissuasive. I am satisfied that the existing level of awards open to the Equality Tribunal and heretofore to the Labour Court in gender and non-gender cases is sufficiently high to deter unscrupulous employers and fully to compensate employees who suffer the effects of discrimination in the workplace.

In essence because of the European Court of Justice's interpretation of the equality directive in the Marshall case we are obliged to allow gender discrimination cases to go to the Circuit Court. They may go to the tribunal in the ordinary way but we must give them the option to go to the Circuit Court, where there is no cap on the compensation they can receive. On the other hand, it is evident that there is no need for people in those or other discrimination cases to go to the Circuit Court because nobody has yet availed of that option in gender discrimination cases. People have found that they could get adequate remedy before the tribunal.

In regard to the Amendment No. 24 proposed by Deputy Paul McGrath, regarding section 77 of the Act, and the proposed new subsection (11), I note his point and that of the Commission on Human Rights, that the amendment provides that parties to proceedings under the Acts have certain rights to be represented before the courts. The difficulty with this is that court rules and procedures are outside the scope of the 1998 Act and cannot be provided for therein. The rules of court on who represents whom and in what circumstances are a separate area dealt with by law in the rules of the individual courts.

Amendment agreed to.

I move No. 22:

In page 21, between lines 9 and 10, to insert the following:

"(a) by the insertion in subsection (3) after ’Equal Treatment Directive’ of ’or any other Directive referred to in the Title to the Equality Act 2004,’,”.

I wish to withdraw this amendment because I need more advice on it. I will probably submit it again on Report Stage. I thank the Minister of State for accepting amendment No. 21.

Amendment, by leave, withdrawn.

Does the Minister of State accept amendment No. 21 as it is stated or must we put an amendment on Report Stage?

The next Government amendment covers the point. It was inserted as a result of comment in the Seanad and the Dáil.

Amendments Nos. 23, 26 to 28 inclusive, 31, 32, 35, 36, 38, 39 and 56 are related and amendment No. 31 is an alternative to No. 30. Therefore, we will discuss amendments Nos. 23, 26 to 28, inclusive, 30 to 32 inclusive, 35, 36, 38, 39 and 56 together by agreement.

I move amendment No. 23:

In page 21, paragraph (a), lines 20 and 21, to delete “, Labour Court”.

Many amendments in this group to seek to make a simple and straightforward change. I can read the three-page note to the committee if it wishes.

The Minister of State can give us a summary.

In summary, section 77 of the Employment Equality Act 1998 provides for three separate avenues of redress. First, under discriminatory treatment, if someone alleges discrimination the case goes to the Equality Tribunal; second, if someone alleges victimisation that also goes to the Equality Tribunal but if someone is dismissed as a result of discrimination or victimisation he or she must go to the Labour Court; third, in gender cases people have the option of going to the Circuit Court from the outset. This amendment removes the Labour Court from the equation and provides that if someone claims discrimination or discriminatory dismissal, victimisation, or dismissal as a result of victimisation, the Equality Tribunal must deal with all of that, for the sake of coherence. I have also provided that there be a right of appeal to the Labour Court from a decision of the Equality Tribunal and I am introducing a new provision that decisions of the Labour Court can be appealed on a point of law to the High Court. All those amendments provide that.

Are the District and Circuit Courts out of the equation altogether?

Yes, except for gender cases in which case one can go to the Circuit Court, following the Marshall decision.

Amendment agreed to.

I move Amendment No. 24:

In page 22, paragraph (c), line 19, to delete "or Labour Court" and substitute ", Labour Court, District Court or Circuit Court".

Amendment, by leave, withdrawn.

I move amendment No. 25

In page 22, paragraph (c), line 30, to delete “Effect” and substitute “Unless otherwise agreed by the complainant and respondent, effect”.

The purpose of this amendment is to provide that where both parties agree, effect can be given to decisions of the director without requiring a waiting period of 42 days, the period in which an appeal can be lodged. In other words, if the Equality Tribunal makes a decision one has 42 days within which to appeal. No action can be taken on foot of that decision before the appeal period has expired. Under this amendment, if both parties agree, any action the tribunal recommends can take place within the 42 day period. It improves the legislation.

Amendment agreed to.

I move amendment No. 26:

In page 22, paragraph (c), to delete lines 36 to 44 and in page 23, to delete lines 1 to 6.

Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.

I move amendment No. 27:

In page 23, line 10, to delete "or the Labour Court".

Amendment agreed to.

I move amendment No. 28:

In page 23, to delete lines 23 to 30.

Amendment agreed to.
Section 32, as amended, agreed to.
Section 33 agreed to.
SECTION 34.

I move amendment No. 29:

In page 24, to delete lines 7 to 9 and substitute the following:

"(b) by inserting the following subsection after subsection (3):

'(3A) If, in a case which is referred to the Director under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

(a) whether the complainant has complied with the statutory requirements relating to such referrals,

(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,

(c) whether the complainant is an employee, or

(d) any other related question of law or fact, the Director may direct that the question be investigated as a preliminary issue and shall proceed accordingly.’,

(c) in subsection (6), by substituting:

(i) 'make a decision' for 'issue a decision', and

(ii) 'subsection (3) or (3A)' for 'subsection (3)',

and

(d) by adding the following subsection:

'(7) Without prejudice to section 83, the complainant or respondent may appeal to the High Court on a point of law from a decision made by the Director under this section.'.".

This amendment provides for several technical amendments to section 34 of the Bill amending section 79 of the 1998 Act. The first will facilitate effective work practices in the Equality Tribunal by allowing minor points of fact arising to be dealt with as preliminary issues so the tribunal can quickly establish whether a case meets the basic requirements of the law to allow proceedings to continue. The second provides for a correction to the wording in section 79(6) of the 1998 Act in respect of the making of a decision by the director and inserts a reference to a new subsection 79(3)(a). The third provides for a new right of appeal to the High Court on a point of law arising from any decision of the director, including a preliminary decision. These are technical amendments which serve to improve the operation of the legislation.

Amendment agreed to.
Section 34, as amended, agreed to.
SECTION 35.

I move amendment No. 30:

In page 24, to delete lines 11 to 22 and substitute the following:

"is amended as follows:

(a) in subsection (4) by the deletion of that subsection and the insertion of the following:

'(4) The maximum amount which may be ordered by the Director or the Labour Court by way of compensation under subsection (1)(c) or by that Court under subsection (2)(b), shall be at the discretion of the Director or Labour Court.’;

(b) by inserting the following subsections:”.

The Minister of State is imposing ceilings on levels of compensation. The courts must have their own ceilings and should be in a position to decide on the level of compensation, rather than have the Minister of State impose his wishes on them.

The amendment suggests that it will be at the discretion of the Equality Tribunal, when it states: "The maximum amount which may be ordered by the Director or the Labour Court by way of compensation", and later, this "shall be at the discretion of the Director or Labour Court".

Yes, "by way of compensation under subsection (1)(c) or by that Court under subsection (2)(b)”. To what other court would it appeal? The courts should make the decision on what should be the level of compensation rather than it being included in the legislation.

There are statutory limits to the amount of compensation that can be decided upon by any court.

That is my point. The discretion should be given to the courts, not the Minister.

They do not have such discretion at present. The District Court and Circuit Court can only award compensation up to a certain amount. What we are dealing with here is a quasi-judicial tribunal. It is not a court as such. It would be somewhat unrealistic to give a quasi-judicial tribunal unlimited discretion as regards compensation, particularly as statutory caps apply in the two lower levels of the courts.

Will the imposition the Minister of State is making here interfere with what the courts will do? For example, I think the limit in the Circuit Court at present stands at €40,000. Will the restriction being imposed in this section mean that the Circuit Court will not be able to reach that ceiling? Will the ceiling being put in place by the Minister of State be below that amount and, hence, will the court be restricted from doing its work?

In the Circuit Court and District Court it only applies to gender matters.

It is the Circuit Court.

Is the Minister of State placing a cap on what can be paid?

Surely the court has discretion to decide what should be the level of compensation.

It is the lower of the two. If the jurisdiction of the Circuit Court is €40,000 and if the maximum formula comes in at €45,000, the actual amount will be limited to €40,000.

If the formula comes out at €30,000, will the court be restricted to paying that amount?

Is that not wrong? If the judge decides that €40,000 should be paid, surely he or she should not be restricted by the legislation from ordering that amount to be paid. Should the amount to be paid not be left at the discretion of the court?

Yes. However, we are dealing here with appeals to the court from the tribunal. Should the court be able to give more than the maximum achievable before the tribunal?

Is that not why we have courts? Courts can take independent views on matters and reach their own decisions. Is that not the kernel of the issue.

Up to a maximum.

Should it be up to a maximum or should the court be allowed to decide the amount of money based on the level of discrimination involved? Is it not the case that the Minister of State is overriding the courts?

It should be subject to the maximum amount payable by that court and if someone then wishes to appeal to the High Court, they may do so.

We will give further consideration to that point.

Amendment, by leave, withdrawn.

I move amendment No. 31:

In page 24, lines 14 and 15, to delete "or the Labour Court".

Amendment agreed to.

I move amendment No. 32:

In page 24, line 30, to delete ", Labour Court".

Amendment agreed to.
Section 35, as amended, agreed to.
NEW SECTION.

I move amendment No. 33:

In page 24, before section 36, to insert the following new section:

36.--Section 85 (enforcement powers of the Authority) of the Act of 1998 is amended by the insertion of the following subsection after subsection (5):

'(5A) Where the Authority refers, or is considering whether to refer, a matter to the Director under subsection (1) in relation to a person referred to in any of paragraphs (a) to (c) of that subsection, subsections (5) to (8) of section 67 shall apply and have effect in relation to that person as those subsections do in relation to a person requesting assistance under that section.’.”.

This amendment to section 85 of the Act of 1998 will apply the provisions inserted in section 67 of the Act, which were inserted by section 27 of the Bill. This will clarify that the normal provisions concerning legal privilege and client confidentiality will apply to information received under this section. In other words, if the authority takes on a case on somebody's behalf, lawyer-client privilege and confidentiality will operate as between the authority and the lawyer because the authority will be deemed to be the client.

Amendment agreed to.
SECTION 36.

I move amendment No. 34:

In page 25, line 18, after "2001)" to insert ", in so far as they relate to proceedings under this Act,".

This amendment arises in response to an issue raised in the Seanad in respect of the provisions for revocation of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 under section 85(5) of the Act of 1998. In reply to the points raised in the Seanad debate and to remove any doubt as to the scope of the revocations provided for in the Bill, it is proposed to insert the more limited wording proposed.

Amendment agreed to.
Section 36, as amended, agreed to.
Sections 37 to 39, inclusive, agreed to.
NEW SECTION.

I move amendment No. 35:

In page 26, before section 40, to insert the following new section:

"40.--Section 101 (alternative avenues of redress) of the Act of 1998 is amended——

(a) in paragraph (b) of subsection (2) (as substituted by reference number 30 of the Schedule to the Equality Act 2004), by the insertion after ’dismissal’ of ’, unless the Director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and respondent’, and

(b) by the substitution of the following subsection for subsection (5):

'(5) Where the Director issues a direction under subsection (2)(b), the resulting entitlement of the employee under that subsection is deemed to have effect from the date of the direction.’.”.

Amendment agreed to.
Section 40 deleted.
SECTION 41.

I move amendment No. 36:

In page 26, to delete lines 44 to 46 and in page 27, to delete lines 1 to 7 and substitute the following:

101A.--Where the conduct of an employer consti-".

Amendment agreed to.

I move amendment No. 37:

In page 27, line 10, after "Part-Time" to insert "Work".

This is a technical amendment to correct the reference in the new section 101A(2) of the Act of 1998 to the Protection of Employees (Part-Time Work) Act 2001.

Amendment agreed to.
Section 41, as amended, agreed to.
SECTION 42.

I move amendment No. 38:

In page 27, paragraph (b), to delete lines 31 to 36 and substitute the following:

" '(a) an appeal is brought to the Labour Court under this Part, or

(b) a case is referred to the Labour Court under the said Act of 1974 or 1977,'.".

Amendment agreed to.
Section 42, as amended, agreed to.
Section 43 agreed to.
NEW SECTIONS.

I move amendment No. 39:

In page 28, before section 44, but in Part 2, to insert the following new section:

44.--(1) Subject to subsection (2) and section 83 of the Act of 1998, the Labour Court shall cease to have jurisdiction under Part VII of that Act in cases of dismissal in circumstances amounting to discrimination or victimisation, and accordingly the amendments set out in the Schedule to this Act shall have effect.

(2) A case which was referred to the Labour Court before the commencement of this section and which, but for subsection (1), would fall to be investigated by the Court under section 79(1) of the Act of 1998 shall

(a) if, on the date of such commencement, the Court has not begun to investigate the case, be transferred by the Court to the Director as if it had been referred to him or her in the first instance, and the Employment Equality Acts 1998 and 2004 shall apply accordingly in relation to it, with any necessary modifications, and

(b) in any other case, be treated for all purposes as if subsection (1) had not been enacted.”.

Amendment agreed to.

I move amendment No. 40:

In page 28, before section 45, to insert the following new section:

45.--The Act of 2000 is amended by inserting the following section after section 2:

2A.--The Minister shall do all that is reasonably possible to ensure that during the Irish Presidency of the European Union, the Irish language is recognised as an official language of the European Union.'.".

This is an important amendment which, again, involves the question of equality. Whether Irish should be recognised as a language of the EU has been under discussion for a considerable period. Despite its lofty ideals and the lip service it has paid to the Irish language in the past, the Government has done nothing to ensure that the language is recognised within the EU. If some of our newly elected MEPs - a number of whom are proficient in Irish - wish to address the European Parliament in Irish, they will be prohibited from doing so because it is not a recognised language. It is regrettable that nothing has happened in respect of this matter. The amendment proposes that, in the dying days of the Irish Presidency of the EU, all the stops be pulled out to try to ensure that the Irish language is recognised as one of the official languages.

The Minister of State's party has claimed for a long period, since the time of Éamon de Valera, that one of its aims is the restoration of the Irish language. Unfortunately, those who now follow Éamon de Valera have lost their way and seem to have jettisoned what was one of their apparent reasons for existence. Will the Minister of State explain why that is the case and will he accept the amendment?

The outstandingly successful Irish Presidency is nearing its end. The amendment is, therefore, too late to be relevant. As already indicated in the Seanad, the two official languages of the State are set down in Article 8 of the Constitution as Irish and English. The constitutional review group which reported on in 1996 did not advocate the addition of any further languages. The Irish language has the status of a treaty language in the European Union. This derives from the fact that the treaties are in Irish and that Irish is listed in the treaties as one of the languages in which the text is authentic. This means that each successive treaty is published in Irish as well as in the 11 other languages, with the text in Irish being equally authentic and having equal status with those in all other languages.

It has been the Government's consistent approach to take any appropriate opportunity to enhance the standing of Irish in the EU and it has done so in several respects. The Amsterdam treaty in 1996 confirmed the right of EU citizens to correspond with the EU institutions in any of the treaty languages. A declaration adopted in conjunction with the Nice treaty in 2001 called for a response to any such correspondence to be made within a reasonable period. The Irish representatives at the European convention which negotiated the draft constitutional treaty ensured that these rights will be maintained. At our request, an Irish language version of the draft constitutional treaty, agreed at the European convention, was also prepared. The EU's Lingua project for the promotion of language teaching and learning recognises the Irish language for its projects. Most recently, the Government has taken steps to enhance the standing of the Irish language in the context of the reform of the staff regulations for EU officials.

The Government remains committed to its policy of monitoring developments with a view to availing itself of any appropriate opportunity which may arise to enhance the status of Irish in the EU. It is in this spirit that there are ongoing discussions between the Department of Foreign Affairs and the Department of Community, Rural and Gaeltacht Affairs in which all the options available to us are being analysed. A working group was established to consider what can be achieved on this issue and the possibilities that exist to make progress. I understand that the working group has completed its report, which is now under consideration by the appropriate Ministers and will be put to the Government shortly.

In view of this, it is inappropriate to introduce such an amendment at this time. Indeed, the amendment is inappropriate to this Bill and the Minister for Justice, Equality and Law Reform is not the appropriate Minister. I cannot accept the amendment.

I have heard nothing different from what I expected. Whenever the Minister of State is in trouble, he recounts a long diatribe of the Government's achievements. I am surprised he did not challenge Opposition Members with the relevant facts and figures from their term in Government previous to 1997. The reality is that the Government has done nothing to ensure that Irish becomes a recognised language in the EU. That is the end of the story. The Minister of State's actions have set on their head all the things he has said and the principles he has supposedly stood for in the past. He has lost out miserably in promoting the Irish language and has fallen back dramatically in his endeavours to do so. He has made no effort, bowed down to our European partners and disregarded the rights of the Irish people who wish to have Irish recognised as an official EU language. Unsurprisingly, the bottom line is that the Minister of State has failed and he is unprepared to accept an amendment which could rectify that failure.

My Department has done much in this area. I will not accept the amendment and this Bill is not the appropriate legislation to incorporate it.

I commend Deputy McGrath's initiative in formulating this amendment. The Government may consider the amendment inappropriate to the Bill but we have unsuccessfully tried every other mechanism to ensure that the Irish language gets its deserved equality in the EU. It is a shame the Government has not tried to attain that equality. There is no such thing as an enhanced position; it is an either-or situation. The Irish language has treaty status rather than official status. The Government's attempt to hide behind efforts to attain enhanced status is dreadful. The accession of the ten new member states and the corresponding influx of new languages provided an opportunity for the inclusion of Irish as an official language. It will be more difficult to attain this end in the future because of the increased number of official languages. Every opportunity to enhance the status of Irish both at home and in the EU, whether through an equality Bill, a language Bill or through the European Parliament, should be taken. Irish people should not be discriminated against on the basis of language within the EU.

Amendment put and declared lost.

With regard to amendment No. 21 in section 31 in the name of Deputy Moynihan-Cronin, which was accepted by the Minister of State, I understand that there is a need to change the wording slightly. The amendment, as currently worded, cannot be taken but the substance of the amendment is accepted. Some slight textual tweaking is required.

I accept that so long as it is in the same spirit.

Section 45 agreed to.
SECTION 46.

Amendments Nos. 41 to 43, inclusive, are related and may be discussed together by agreement.

I move amendment No. 41:

In page 29, paragraph (b), lines 41 and 42, to delete “(other than a separate and self- contained part)”.

I expect that the Minister of State will accept this amendment as it is similar to one he has already accepted. Amendments Nos. 41 to 43, inclusive, deal with the same point. My first amendment proposes to delete "(other than a separate and self-contained part)" after the words "the provision of accommodation by a person in a part". This provision is political correctness gone mad and it has not been properly thought through. A consequence of it is that if, for example, one accommodates an au pair in a granny flat one is prohibited from discriminating against the selection of the au pair on the grounds of age etc., even though the accommodation affects one's family life as the person residing in the home. This is because the exemption only applies if both the flat is not self-contained and the accommodation affects the private life of the person residing in the rest of the house. This is a provision worthy of Big Brother and it should be amended.

My second amendment, which relates to the same section of the Bill, provides that the employer would not be constrained from selecting someone of their own choosing, even if the employee is living in a self-contained flat, as long as the employee is providing personal services. This provision is another example of bureaucracy gone mad and I urge the Minister of State to recognise the problems it could cause in the future. Deputy McGrath alluded to this issue earlier in one of his own amendments.

Amendment No. 43 proposes the inclusion of "or in circumstances" after "home," in line 42. The provision makes it unlawful to choose the tenant of one's own choosing if the tenant resides in self-contained accommodation and does not affect the private life of the owner. This is the crux of my three amendments. The provision will impact on families living in the kind of accommodation to which I have referred. I am all for equality but I am also for privacy and I support an individual's right to decide who should be permitted to live in his or her home. It is my intention to press the amendments.

I thank Deputy Moynihan-Cronin for her eloquent exposition of the case though I expected her to argue it from a different direction. Section 6 of the Equal Status Act 200 provides for certain exclusions regarding the offer of accommodation. This narrows the area in which it is possible to discriminate. If, as the Deputy suggests, one restores the terminology, "other than a separate and self contained part", one is broadening the exclusion area.

The removal in amendment No. 14 of the section in brackets in lines 41 and 42, "(other than a separate and self-contained part)" would make the proposed exemption too broad and exclude from the provisions of the Equal Status Act 2000 the letting of separate or self-contained accommodation in the owner's home such as bed and breakfast accommodation or a self-contained apartment in a house. The racial equality directive does not provide for any exemptions in the accommodation area. In particular it does not, as such, exempt the letting of accommodation in the provider's home. However, in recital 4, the directive provides that it is important, in the context of the access to and provision of goods and services, to respect the protection of private and family life and transactions carried out in that context. The protection of family and private life is a fundamental right covered by Article 8 of the European Convention on Human Rights. It is important that the right to non-discrimination be applied with due respect to the protection of private and family life.

The Government proposes to provide a very narrow exemption, excluding the provision of accommodation by a person in a part, other than a separate or self-contained part, of the person's home, where the provision of the accommodation affects the person's private life or that of any other person residing in the home. As already indicated, the aim is to protect the privacy of persons in accommodation sharing arrangements. It is not the intention to exclude from the Equal Status Act the letting of, for example, a self-contained apartment in the owner's home or bed and breakfast accommodation. I am advised that to do so would be contrary to the race directive.

If the proposed amendments, Nos. 41, 42 and 43, were to be applied, the relevant subsection would read as follows:

the provision of accommodation by a person in a part of the person's home, or in circumstances or in a part of the person's home to a person providing personal services (within the meaning of the Employment Equality Act 1998) to the first mentioned person where the provision of the accommodation affects the person's private or family life or that of any other person residing in the home,..."

The effect of the addition of "or in a part of the person's home to a person providing personal services (within the meaning of the Employment Equality Act 1998) to the first mentioned person" would mean that person's employed in a private home where living accommodation is provided, would not be protected by the Equal Status Act. In amendment No. 43, the addition of the words "or in circumstances" with regard to the provision of accommodation does not add anything extra to the wording and, therefore, would be superfluous to the section.

I am prepared to withdraw the amendments. I cannot take in all the information given by the Minister of State. If he would supply me with the speaking note, I will return to the matter on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 42:

In page 29, paragraph (b), line 42, after “home” to insert the following:

"or in a part of the person's home to a person providing personal services (within the meaning of the Employment Equality Act 1998) to the first-mentioned person".

Amendment, by leave, withdrawn.

I move amendment No. 43:

In page 29, paragraph (b), line 42, after “home,” to insert “or in circumstances”.

Amendment, by leave, withdrawn.
Section 46 agreed to.
SECTION 47.
Question proposed: "That section 47 stand part of the Bill."

I suggest that the section be deleted and I intend to table an amendment to that effect. The proposed amendment to the 1998 Act envisaged here will allow the Minister for Education and Science to discriminate on the basis of race when providing further and higher education grants. A decision of the Equality Tribunal does not allow for that and if this section was agreed it would row back on that decision. We should do everything in our power to ensure we uphold decisions of the Equality Tribunal and we should not include in legislation provisions which allow a rowing back on that.

We will take the Deputy's comments on board for Report Stage.

Question put and agreed to.
Section 48 agreed to.
SECTION 49.

Amendments Nos. 44 to 46, inclusive, are related and will be discussed together by agreement.

I move amendment No. 44:

In page 31, paragraph (a), to delete lines 1 to 7 and substitute the following:

" '(aa) on the basis of nationality——

(i) any action taken by a public authority in relation to a non-national——

who, when the action was taken, was either outside the State or, for the purposes of the Immigration Act 2004, unlawfully present in it, or

(II) in accordance with any provision or condition made by or under any enactment and arising from his or her entry to or residence in the State,

or

(ii) any action taken by the Minister in relation to a non-national where the action arises from an action referred to in subparagraph (i),',".

Section 49 clarifies that any decision taken in the context of asylum and immigration applications cannot be challenged under the Equal Status Act 2000. This was implicit in the existing Act because permitting entry to and residence in the State is not a service within the meaning of the Act. Moreover, treating persons differently on the basis of their legal status, that is, distinguishing between those lawfully and unlawfully resident in the State and those seeking asylum and those granted it, is not discrimination on the grounds of nationality.

The purpose of these amendments is to provide for technical amendments to align the wording of this section to the wording under the Immigration Act 2004. This is necessary to avoid the creation of different meanings under different legislation for the same term. I draw the attention of the committee to Article 3 of the race directive which states:

This directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third country nationals and stateless persons concerned.

It is our intention whenever possible to include nationality under the grounds of race. However, we wish to make it clear that decisions taken in the context of the entry into and residence in the State of non-nationals do not come under the scope of the race directive. In response to representations, it was decided to narrow the exemption to the minimum required in that context. That is the reason I propose the amendment.

I will need to have a more detailed look at it. My suggestion would have been to delete section 49 in its entirety.

Amendment agreed to.

I move amendment No. 45:

In page 31, paragraph (b), to delete lines 9 to 15 and substitute the following:

"(b) by adding the following subsection:

'(2) In subsections (1)(aa)——

"non-national" has the meaning given to it by the Immigration Act 1999 and includes a category of non-nationals;".

Amendment agreed to.

I move amendment No. 46:

In page 31, between lines 39 and 40, to insert the following:

"(3) Nothing in subsection (1)(aa) shall derogate from any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003 or any act adopted by an institution of those Communities.’.”.

Amendment agreed to.
Section 49, as amended, agreed to.

There is a vote in the Dáil. Only four or five amendments remain to be dealt with, but, in addition, we must also agree the correct wording of amendment No. 21, so that when the Bill is printed we have the exact wording. We have an opportunity either to come back immediately after the vote for a short period of time or else we can resume tomorrow at 9.30 a.m.

I must explain legislation to the parliamentary party so I will not be available later.

We should be finished by 5.30 p.m.

Will we have to come back tomorrow to agree the wording of the amendment?

No, we can agree it as soon as we resume this afternoon. It is only a case of tweaking it.

Will we finish it if we come back?

I hope we can finish it before 5.30 p.m. this evening. We will resume immediately after the vote.

Sitting suspended at 5 p.m. and resumed at 5.15 p.m.
NEW SECTION.

I move amendment No. 47:

In page 31, before section 50, to insert the following new section:

50.---Section 15 of the Act of 2000 is hereby repealed.".

The purpose of the amendment is to insert a new section repealing section 15 of the Equal Status Act 2000. Section 15 of the Act sets out a range of matters which do not constitute discrimination to my mind, and I suggest that would also be the view of the Human Rights Commission. The section is most tendentious and runs contrary to the ethos of guaranteeing and enforcing equality. However, we are all aware of the position of the senior Minister regarding equality. In recent times he said he wants to foster inequality. In view of this, the provisions of section 15 of the Equal Status Act are not surprising. I anticipate that the Minister of State will not agree to delete it.

I note what Deputy McGrath said. Section 15(1) of the Equal Status Act provides that where a service provider has reasonable grounds, other than discriminatory grounds, for the belief that provision of the services to the customer in question would produce a substantial risk of criminal or disorderly conduct or behaviour, or damage to property, the service provider is not required to serve the particular customer. Section 15(2) further provides that action taken in good faith by a licensee for the sole purpose of ensuring compliance with the provisions of the Licensing Acts 1833 to 1999 shall not constitute discrimination. The provisions under section 15 of the Act are intended to enable service providers, including licensees, to maintain control of their premises, including protecting customers and staff from harassment and assault without contravening the anti-discrimination law.

I have examined the extensive case law on the interpretation of section 15(1) and (2) of the 2000 Act and it is clear that the Equality Tribunal has interpreted these subsections conservatively. The tribunal has thrown out defences based on section 15(1) where customers were refused because of the conduct of others, the refusal appeared disproportionate to any reasonably suspected risk or the evidence did not substantiate that the refusal was, in fact, connected to violent or disorderly conduct. In particular, it was not sufficient to assume that the complainant presented such a risk merely because he or she was, for example, a Traveller, and other Travellers had been involved in trouble.

The cases where the section 15(1) defence has been successfully invoked prove that this section is necessary and reasonable. In one case, the Equality Tribunal accepted witness and documentary evidence which showed the complainant had a history of convictions for violent incidents in the area, which were known to the service provider, and that the service provider had only stopped serving the complainant when he learnt of the most recent assault. In another case, the complainants had been refused service in a hairdressers because they had used threatening and abusive language to the hairdresser on several occasions. The effect of the Deputy's amendment is to require that such customers must be served.

Section 15 (2) provides that:

"Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the provisions of the Licensing Act, shall not constitute discrimination."

Without this provision a licensee would be caught between a rock and a hard place. Various provisions of the Licensing Acts impose an effective obligation on publicans and other licensees to prevent drunkenness, violence, disorderly conduct, under age drinking or quarrelsome behaviour on their premises at the risk of losing their licence or having it endorsed, and, in some cases, of other serious consequences. However, without section 15(2), action taken by a licensee to comply with the Licensing Acts could be challenged as discriminatory. It is sometimes argued by opponents of this section that the phrase, "in good faith" provides a defence which was solely subjective and permits refusal of service on discriminatory grounds. Case law shows that this is not the position.

Case law has determined that first, a licensee seeking to establish a defence under section 15(2) must demonstrate that his or her actions were intended solely to avoid any potential liability under the Licensing Acts. Second, the criterion of "good faith" requires that the licensee acts honestly in refusing service to the complainant which, in this context, would mean without a discriminatory motive. I am satisfied section 15 has been rigorously tested in case law and found to be necessary and reasonable.

The case made by the Minister of State indicates he is of the opinion that section 15 has not been interpreted in the way it was intended. In that context, is it not surprising that he is not at least introducing amendments to the section?

I said the opposite. I did not say it was interpreted improperly, I said it was interpreted conservatively and quite properly and I could understand all the decisions taken under it.

The Minister of State implied that it was being improperly interpreted.

If I say it was interpreted properly, I cannot imply it was done improperly.

Conservatively.

Conservatively, yes. That does not mean improperly.

That is what was implied in the cases the Minister of State outlined.

Amendment, by leave, withdrawn.
Section 50 agreed to.
SECTION 51.

Amendments Nos. 48 to 51, inclusive, are related and may be discussed together by agreement.

I move amendment No. 48:

In page 32, between lines 8 and 9, to insert the following:

"(a) in subsection (2)(a) to delete both occurrences of ’2 months’ and substitute ’6 months’ in each case,”.

I understand that in the Seanad the Minister changed some of his proposals in deference to an amendment put forward by my colleague, Senator Terry. He reduced the Statute of Limitations from three years to one year. I hope the Minister will think twice about what is effectively a two month limitation period in section 21 of the Equal Status Act 2000, which states that a person claiming to have experienced prohibitive conduct must report such incidents within two months. If they are too traumatised or incapable of making a complaint within two months, according to the Minister that is hard luck. I propose that that the two-month period be increased to at least six months. I would like it to be longer, in line with the two years proposed in the Statute of Limitations. However, six months might be a reasonable compromise. I hope the Minister of State will accept the amendment.

I support the amendment because I know of a serious case where it was within the two months but the person was not able to do it. Such a person would have lost out were this to apply.

Section 51, paragraphs (b) to (f), provide for technical amendments to some provisions of the 2000 Act and the creation of new provisions to facilitate late claims to be accepted where there is reasonable cause or where there is misrepresentation by a respondent and to clarify the relevant date to be applied in a claim of prohibited conduct. In other words, we are making provision to facilitate people going outside the two month period where that is proved to be necessary.

Section 21 of the 2000 Act, which references the two month notification requirement placed on complainants, was originally the subject of major discussion during processing of the 1997 Bill and was substantially modified at that time to introduce greater flexibility into the process. It was agreed at the time that section 21(2), with its two-month time limit, strikes the appropriate balance between the interests of the complainant and those of the service provider.

Exceptional circumstances are already catered for in section 21(3), which is now the subject of a technical amendment, under section 51 of the Bill, to provide for an extension of the two month notification requirement to four months where there is reasonable cause rather than the current exceptional circumstances requirement. This is a loosening of the original requirement.

If we accept the proposed across the board period of six months for notification, it would be too much. Given the transient nature of many of the contracts covered by the equal status legislation, such as service in a shop or restaurant, it would not be desirable to have such claims sprung on the respondent many months after the incident in question occurred.

The other proposal in the name of the Deputy is that a six-month requirement from the date of occurrence of the prohibited conduct within which a case may be referred to the ODEI should be extended to two years. The overall time limit of six months, and its extension for reasonable cause by another six months, is identical to that in the Employment Equality Act 1998, as amended by this Bill. Where possible and practical, policy has been to keep both the Employment Equality Act 1998 and the Equal Status Act 2000 similar for ease of reference for complainants under the equality legislation.

What has happened in many of these cases is extremely serious and can give rise to serious complaints. Under the Statute of Limitations for other items, one can make a claim up to two years later. Why should the same limit not apply in this case? In many cases one is talking about behaviour which may have been extremely serious. Hospitalisation, depression and various other consequences can have arisen from it. It is reasonable to look for equality across the various pieces of legislation. Under the Statute of Limitations a two year period applies and I cannot see why the Minister of State will not give favourable consideration to these changes despite what he stated.

This has been discussed in considerable detail. Given the transient nature of the contracts with which we are dealing and that in many cases the claims are quite small, it was initially agreed that two months represented a reasonable balance. We have gone beyond that. Initially we stated that in certain restrictive circumstances one could go beyond the two-month period once one brought a claim within a further two-month period. We are amending that again here to make it easier to extend the two-month period to four months. Six months is a bridge too far but I will consult with my officials between now and Report Stage.

There is a big difference between six months and two years. As I stated, we have already provided an amendment to enable the six months to be extended by another six months to allow a person one year to bring a claim where one can establish with good reason that one cannot bring the claim within the six-month period. However, I will give further consideration to the other proposal to provide for six months as opposed to two months.

Amendment, by leave, withdrawn.

I move amendment No. 49:

In page 32, paragraph (c), line 21, to delete “2” and substitute “6”.

Amendment, by leave, withdrawn.

I move amendment No. 50:

In page 32, paragraph (c), line 22, to delete “4” and substitute “12”.

Amendment, by leave, withdrawn.

I move amendment No. 51:

In page 32, paragraph (d), line 30, to delete “6 months” and substitute “2 years”.

Amendment, by leave, withdrawn.
Section 51 agreed.
Sections 52 and 53 agreed to.
NEW SECTION.

I move amendment No. 52:

In page 34, before section 54, to insert the following new section:

"54.-Section 23 (references of certain matters to Director) of the Act of 2000 is amended by the addition of the following subsections:

'(5) The relationship between a solicitor employed by the Authority or any barrister retained by him or her and a person referred to in subsection (1)(a) shall be the same as the relationship between a solicitor or barrister and a client who is not such a person.

(6) Subsection (5) is without prejudice to the rights and responsibilities of the Authority and the obligations arising out of the relationship between the Authority and the solicitors employed by it.

(7) For the avoidance of doubt, it is declared that sections 59 (prohibition of solicitor acting as agent for unqualified person) and 64 (bodies corporate) of the Solicitors Act 1954 do not apply in regard to the relationship between a solicitor employed by the Authority and a person referred to in the said subsection (1)(a).’.”.

The purpose of the new section proposed by this amendment is to keep in line with amendments to the Employment Equality Act 1998. This is a technical amendment to provide for avoidance of doubt that where solicitors or barristers are employed under section 23 by the authority, the normal provisions governing legal privilege and client confidentiality apply and that certain provisions of the Solicitors Act 1954 do not apply.

Amendment agreed to.
Sections 54 to 56, inclusive, agreed to.
SECTION 57.

I move amendment No. 53:

In page 34, between lines 37 and 38, to insert the following:

"(b) in subsection (2) by deleting ’the maximum amount that could be awarded by the District Court in civil cases in contract, and substitute ’at his or her discretion’,”.

This relates to a matter we discussed earlier. The Minister of State indicated he would consider a similar amendment dealing with compensation. On the basis of his earlier commitment, I ask him to look at this also.

The maximum award that can be applied in a case where a complainant is discriminated against on more than one ground is still the same as that in the case of one ground, rather than being the sum of the maximum awards for each of the grounds. I ask the Minister of State to look at that. If a person is discriminated against on nine grounds, the maximum award is still the same as that applying if there were three grounds.

A case with nine, ten or as many grounds as possible could be taken.

The grounds can be quickly ruled out but in bringing a court case, one would need to be specific.

Amendment, by leave, withdrawn.
Section 57 agreed to.
Sections 58 to 60, inclusive, agreed to.
NEW SECTIONS.

I move amendment No. 54:

In page 36, after line 34, to insert the following new section:

"61.-Section 41 (regulations) of the Act of 2000 is amended in subsection (2) by deleting the words after 'any such regulations the Minister' and inserting 'any such regulations the Minister shall consult with the Authority and the Director'.".

This amendment is being introduced to keep the legislation in line with the proposed amendments to the Employment Equality Act 1998. It is a technical amendment to provide that before the Minister makes any regulations under the Equal Status Act 2000 on the operation of the Act, he is obliged to consult with the authority and the director.

Amendment agreed to.

I move amendment No. 55:

In page 36, after line 34, to insert the following new section:

"Part 4

Amendment of Pensions Act 1990

62.-(1) Subject to subsection (2) and section 83 (as applied by section 81J(2) (inserted by section 22 of the Social Welfare (Miscellaneous Provisions) Act 2004) of the Pensions Act 1990) of the Act of 1998, the Labour Court shall cease to have jurisdiction under Part VII (as so inserted) of the said Act of 1990 in cases of dismissal in circumstances amounting to discrimination or victimisation.

(2) A case which was referred to the Labour Court before the commencement of this section and which, but for subsection (1), would fall to be investigated by the Court under section 79(1) (as so applied) of the Act of 1998 shall-

(a) if, on the date of such commencement, the Court has not begun to investigate the case, be transferred by the Court to the Director as if it had been referred to him or her in the first instance, and the Pensions Acts 1990 to 2004 shall apply accordingly in relation to it, with any necessary modifications, and

(b) in any other case, be treated for all purposes as if subsection (1) had not been enacted.

(3) The Pensions Act 1990 is amended-

(a) in section 65 (inserted by section 22 of the said Act of 2004), by substituting ’Director of the Equality Tribunal’ for ’Director of Equality Investigations’ in subsection (1),

(b) in section 81E (as so inserted)-

(i) by substituting 'subsections (3) to (6)' for 'subsections (2) to (6)' in subsection (1),

(ii) by deleting subsection (2),

(iii) by substituting the following subsection for subsection (3):

'(3) If the grounds for such a claim arise in relation to a breach of the principle of equal pension treatment on the gender ground, the person making the claim may, subject to subsections (4) to (7), seek redress by referring the case to the Circuit Court instead of to the Director.',

(iv) by substituting the following for the definition of 'the complainant' in subsection (4):

' "the complainant" means-

(i) the person by whom it is referred, or

(ii) where such a person is unable, by reason of an intellectual or a psychological disability, to pursue it effectively, his or her parent, guardian or other person acting in place of a parent;'

and

(v) by deleting ', the Labour Court' in subsection (6),

(c) in section 81F (as so inserted)-

(i) by deleting 'or Labour Court' in subsection (3),

(ii) by deleting 'Effect' in subsection (4)(c) and inserting ’Unless otherwise agreed by the complainant and respondent, effect’, and

(iii) by deleting subsection (5),

(d) in section 81H (as so inserted)-

(i) by substituting 'section 81E;' for 'section 81E.' in subsection (1),

(ii) by adding the following paragraph to that subsection:

'(e) an order for re-instatement or re-engagement, with or without an order for compensation.’,

(iii) by deleting subsection (2),

(iv) by substituting the following subsection for subsection (3):

'(3) The types of redress for which the Circuit Court may provide on a reference under section 81E(3) are such one or more of the orders referred to in subsection (1) as may be appropriate in the circumstances of the case, and no enactment relating to the jurisdiction of the Circuit Court shall be taken to limit the amount of compensation which may be ordered by the Circuit Court by virtue of this subsection.',

(v) by inserting 'or (1)(e)’ after ’(1)(d)’ in subsection (4) and by deleting ’or the Labour Court’ and ’or by that Court under subsection (2)(b)’ in that subsection,

(vi) by deleting 'or the Labour Court' and 'or the Labour Court, as the case may be,' in subsection (5), and

(vii) by deleting ', Labour Court' in subsection (8),

(e) in section 81J (as so inserted), by substituting ’76, 77A’ for ’76’ in subsection (2),

(f) in the Fourth Schedule (as so inserted)-

(i) by substituting '74(3), 76(1)' for '76(1)' and deleting '84(1)', '101(5), 101(6)(a)’ in column (2) opposite reference number 4,

(ii) by substituting ', 101(2) and 101A(1)' for 'and 101(2)' in column (2) opposite reference number 6,

(iii) by deleting reference number 7,

(iv) by substituting 'Section 83(6)' for 'Sections 79(4) and 83(6)' in column (2) opposite reference number 9,

(v) by substituting ' "paragraph (c) or (f) of section 82(1)” ’ for ’ “section 82(2)” ’ in column (3) opposite reference number 27, and

(vi) by inserting the following after reference number 30:

’30A.

Section 101A(2)

’Where the conduct of an employer constitutes both a contravention of Part III or IV and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003, relief may not be granted to the employee concerned in respect of the conduct under both this Act and either of the said Acts.’

’Where the conduct of an employer constitutes both a contravention of Part VII of the Pensions Act 1990 and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003, relief may not be granted to the employee concerned in respect of the conduct under both this Act as it applies to Part VII of the Pensions Act 1990 and either of the said Acts.’. . ”.

Amendment agreed to.
NEW SCHEDULE.

I move amendment No. 56:

In page 36, after line 34, to insert the following new Schedule:

"Section 44.

SCHEDULE

AMENDMENTS OF ACT OF 1998 REFERRED TO IN SECTION 44

Section 77

1. Substitution of following subsection for subsections (1) and (2):

’(1) A person who claims-

(a) to have been discriminated against or subjected to victimization.

(b)to have been dismissed in circumstances amounting to discrimination or victimization.

(c)not to be receiving remuneration in accordance with an equal remuneration term, or

(d) not to be receiving a benefit under an equality clause, In contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director.’.

2.Substitution of following subsection for subsection (3)

’(3) If the grounds for such a claim arise-

(a) under Part III, or

(b) in any other circumstances (including circumstances amounting to victimization) to which the Equal Pay Directive or Equal Treatment Directive is relevant, then, subject to subsections (4) to (9), the person making the claim may seek redress by

which the Equal Pay Directive or Equal Treatment Directive is relevant,

by referring the case to the Circuit Court instead of to the Director.’.

Section 78

In subsections (8) and (10), deletion of ’,(2)’.

3. Deletion of subsection (2).

4. Substitution of following subsection for subsection (3):

’(3) If the complainant or respondent objects to a case being dealt with by way of mediation, the Director shall not exercise his or her powers under the section but shall deal with the case under Section 79’

6. In subsection (4), deletion of ’,whether by an equality mediation officer or by the Labour Court.

7. In subsection (5), deletion of-

(a) ’or, as the case may be, the Labour Court’ where it occurs in paragraphs (a) and (c), and

(b) " or the Labour Court, as the case may require’ in paragraph (d).

8. Substitution of the following subsection for subsection (6):

’(6) If, after a case has been referred to an equality mediation officer under subsection (1), it appers to the officer that the case cannot be resolved by mediation, he or she shall issue a notice to that effect to the complainant and respondent.’.

9. In subsection (7) (as amended by section 33), deletion of, ’or, as the case may be the Labour Court’ and ’or the Labour Court, as the case may require.’.

Section 79.

10. In Subsection (1), deletion of-

a. ’or the Labour Court’,

b. ’or the Labour Court, as the case may be’, and

c. ’or that Court’

11. In subsection (2), deletion of words after ’in private’.

12. In subsection (4), deletion of-

(a) ’or, as the case may be, the Labour Court’,

(b) ’the Labour Court’, and (c). the words from ’, and any such’ to ’Employment’.

13. In subsection (5), deletion of ’or the Labour Court’.

14. In subsection (6) (as amended by section 34 (b)), deletion of-

(a) ’or, as the case may be, the Labour Court shall make a determination’, and

(b)’or determination’.

Section 81.

15. Substitution of ’or the Director’ for each reference to’, the Director or the Lsbour Court:

Section 82.

16. In subsection (1)-

(a) substitution of ’specified;’ for ’specified,’ in paragraph (e), and

(b) addition of following paragraph:

’(f) an order for re-instatement or re-engagement, with or without an order for compensating.’.

17. Deletion of subsection (2).

18. In subsection (3)-

(a) substitution of ’paragraphs (c) to (f)’ for ’paragraphs (c) to (e)’,

and

(b) deletion of paragraph (d).

19. In subsection (4)-

(a) insertion of ’or (1)(f)’ after ’(1)(c)’, and

(b) deletion of ’or Labour Court’ and ’or by that Court under subsection (2)(b):

20. In subsection (5), deletion of-

(a) ’or the Labour Court’, and

(b) ’or the Labour Court, as the case may be,’.

Section 84.

21. Deletion of subsection (1).

22. In subsection (3), substitution of ’subsection (2)’ for ’subsection (1) or (2)’

Section 88.

23. In subsection (3)(a), deletion of ’or determination’.

24. Substitution of following subsections for subsections (1) to (6):

’(1) Where a determination is made by the Labour Court on an appeal under this Part, either of the Parties may appeal to the High Court on a point of law.

(2) The Labour Court may-

(a) refer to the High Court a point of law arising in the course of such an appeal, and

(b) if it thinks it appropriate, adjourn the appeal pending the outcome of the reference.’.

Section 91.

25. In subsection (3)(a), deletion of each reference to ’determination or’,

Section 92.

26. In subsection (3), insertion of ’or decision’ after each reference to ’determination’.

Section 93.

27. In subsection (1), insertion of ’or decision’ after ’determination:

Section 98.

28. In subsection (2), substitution of ’Director’ for ’Labour Court".

29. In subsection (5), substitution of-

(a) ’Director for Labour Court’.

(b) ’paragraph (c) or (f) of section 81(1)’ for ’secton 82(2): and

(c) ’Director’s decision’ for ’Labour Court’s determination’.

Section 101.

30. Substitution of subsection (2) by the following:

’(2) Where an individual has referred a case to the Director under section 77(1) and either a settlement has been reached by mediation or the Director has begun an investigation under section 79, the individual-

(a) shall not be entitled to recover damages at common law in respect of the case, and

(b) if he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 1993 in respect of the Dismissal.’.

31. In subsection (4), deletion of opening words to and including ’the dismissal’ and insertion of ’An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the Dismissal if’.

32. Deletion of subsection (6).

Section 103.

33. In subsection (30, deletion of-

(a) "or determination’ in paragraph (b), and

(b) ’90,’ in paragraph (d).

Section 104.

34. In subsection (1), deletion of’, the Labour Court’.

35. In subsection (2)(a), deletion of ’or the Labour Court’.".

Amendment agreed to.
TITLE.

I move amendment No. 57:

In page 5, line 6, after "1998" to insert ", PENSIONS ACT 1990".

Amendment agreed to.

Amendments 58 and 59 are related and both may be discussed together by agreement.

I move amendment No. 58:

In page 5, lines 23 and 24, to delete "IN PART".

These amendments are self-explanatory. The reason for deleting "IN PART" is that when the 2001 regulations are to be revoked in their totality by section 36 of the Bill, the revocation will not be done by part of the Bill but by the whole of it. Am I correct?

I will first deal with amendment No. 58. This relates to the reference to revocation of the European Union's burden of proof in gender discrimination regulations 2001, giving effect to Council Directive 97/80/EC, and the burden of proof in cases of discrimination based on sex. With the insertion of specific provisions in the Bill in respect of burden of proof, the Long Title provides for the partial revocation and re-enactment of these regulations.

The revocation and re-enactment is partial precisely because the regulations apply to both gender discrimination, cases under the Employment Equality Act 1998 and maternity discrimination cases under the Maternity Protection Act 1994. In parallel to the revocation and re-enactment provided for in the Bill, the same approach is provided for in the Maternity Protection (Amendment) Bill 2004. In view of this, I will accept amendment No. 59.

Were the 2001 regulations repealed in their totality by section 36 of the Bill?

No, only partly. The Maternity discrimination cases are dealt with separately under the Maternity Protection Act.

Amendment, by leave, withdrawn.

I move amendment No. 59:

In page 5, line 27, to delete "REGULATION" and substitute "REGULATIONS".

Amendment agreed to.
Title, as amended, agreed to.

I give notice that I intend to suggest an amendment to the Bill at the Final Stage to bring it in line with our commitments under the Good Friday Agreement so that we in this State have statutory obligations similar to section 75 of the Northern Ireland Act in regard to promoting equality proofing. I will put forward an amendment to that effect.

I thank the Deputy for his comments. I also thank the Minister of State and his officials for attending today's meeting to consider Committee Stage of this Bill.

Message to Dáil.

In accordance with Standing Order 85, the following message will be sent to the Dáil:

The Select Committee on Justice, Equality, Defence and Women's Rights has considered the Equality Bill 2004 and has made amendments thereto.

The select committee adjourned at 5.35 p.m. until 9.30 a.m. on Wednesday, 30 June 2004.
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