Select Committee on Social Affairs debate -
Tuesday, 26 Nov 1996

SECTION 7.

Ms Keogh

I move amendment No. 13:

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

This amendment was tabled on foot of comments made by Congress that it is not aware of any problems with the current definition and the implication that the need for the proposed change is unclear. It has been put to me that the use of the words "as employed to do" raises a contractual issue, that a person might be contracted to do a particular job and actually be required to do something different. Will the Minister clarify the reason for this wording?

Mr. Taylor

The amendment tabled by Deputy Keogh does not seem to add anything to the text of the Bill, as drafted. The amendment may possibly be based on a misreading of the Bill.

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

Amendment, by leave, withdrawn.

Chairman

Amendment No. 14 is in the name of Deputy Keogh. Amendment No. 15 is related. Therefore, amendments Nos. 14 and 15 may be discussed together by agreement. Is that agreed? Agreed.

Ms Keogh

I move amendment No. 14:

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

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

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

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

There was debate on Second Stage in relation to making provision for a comparison for equal pay with a hypothetical male and this reasonably length amendment seeks to provide a wording for that provision because we have not seen a wording which would be suitable.

The Bill, as introduced, provided for a hypothetical comparator. One of the key criticisms of this legislation by congress is that it does not afford an opportunity to workers in segregated employments to achieve equal pay. This refers to the huge number of workers who are confined to low pay, low status jobs. This amendment goes a good distance towards redressing the imbalance in regard to this. I do not claim that this amendment is perfect but it is important that a principle is established. If the Minister is not happy with the formulation of the amendment I am willing to let him look at it.

Women should not be used as cheap labour and there is no doubt that one of the reasons that the rate of employment for women is increasing far more than that of men is that many of these jobs are low paid. They are dead end jobs which are referred to as "Mac" jobs. We need to get away from that and one way would be to compare the pay with the rate males in a similar job.

Dr. Woods

Many women are in situations where there is no yardstick for them to determine their rates of pay. There is a great danger that they will be discriminated against on those grounds. A great deal of the discrimination which occurs is indirect, because certain occupations employ women only. These issues must be tackled. The Department of Social Welfare did so when part-time employees were brought into the social security system because the majority of women in part-time employment, with a small number of men, were discriminated against because they were not included. They did not have the entitlements and supports which were necessary. Employers needed flexibility in the workplace and this meant hiring part-time workers, but our duty is to ensure the workers concerned are adequately protected. Certain occupations are exclusive to women and there is no way to make a fair comparison.

For particular industries, joint labour committees have been particularly helpful and successful but there is a need to have the hypothetical comparator which was included in the initial draft of the Bill, a notional comparator along the lines suggested by us or to ensure the joint labour committees are extended to cover such employments. This discrimination cannot be allowed to continue in an indirect way. The ICTU has been concerned about this and were disappointed that the proposal for a hypothetical comparator was dropped from the Bill. It said that Ireland has a highly segregated workforce with many female workers confined to low pay and low status jobs.

Ireland is the only country in the European Union that has signed the Protocol and has not got a statutory minimum wage. Congress was anxious that proactive provisions would be included in this legislation where there is no comparator to achieve equal treatment and pay. IBEC has a different point of view and it said it would be concerned about any theoretical comparators. This viewpoint has to be given due consideration. IBEC strongly objected to an attempt to introduce any concept of the hypothetical comparator into equal pay as it had no place in law. It does not clearly indicate to an employer whether he or she has a liability in a particular case and it would not be possible to deal properly with a case where a hypothetical employee is involved. It also sees the concept of the hypothetical comparator as an attempt to boost the pay of traditionally lower paid jobs which are comprised of members of one sex.

This brings up the issue of indirect discrimination. IBEC defines it as an area in which there is a high proportion of members of a particular sex and in most instances it is women. There has to be concern about that. While IBEC claims that the purpose of the equal pay legislation is to determine whether a woman should be paid the same as a man or vice versawhere both sexes are performing the same work, there are areas where women are employed almost exclusively and consequently getting a fair comparison is not easy. There must be some independent and fair minded yardstick to deal with this issue. The Commission on the Status of Women has also made recommendations in this regard and the National Women’s Council of Ireland also points out that there is a high propensity to use women as cheap labour. As that is the case there must be a mechanism to ensure women are able to secure a similar rate of pay to men. We are not insistent on one particular measure to meet our proposals but it a matter with which the Minister should be concerned. He must find a solution. Having discussed the matter on Committee Stage, perhaps he will examine it further for Report Stage. The legislation needs a proactive provision to ensure women in segregated employments are treated fairly.

Kathleen Lynch

One cannot disagree with the arguments made by Deputy Keogh and Deputy Woods. I have many friends who work in the industries in question. The problem is not who does the work but how much the person is paid. I do not think we can influence that by amending this legislation. The solution lies in rigorously enforced minimum wage legislation. No amendment to this Bill will stop an employer advertising a job at a certain rate knowing that only a certain category of person could possibly work for such a wage. Legislation will ensure that nobody will have to work for a paltry wage although I am sure that organisations such as IBEC and other employers' representatives would argue otherwise.

Alterations to this legislation will not achieve anything in this regard. If we alter it we will only be fobbing off a group of people who deserve far more. I would support legislation that would deal firmly with the industries in question. However, I do not think this legislation is appropriate. This Bill will cover some industries in which women do the same work as their male colleagues but are not paid the same rate.

The sectors to which the Deputies referred will not be covered by these amendments. It would be a cause for concern if amendments to this legislation were considered a solution to the problem.

Mr. Taylor

I realise that the amendments are geared towards the introduction of the concept of the hypothetical comparator. I gave active consideration to the possibility of trying to provide for a hypothetical comparator in the Bill. I sought to try to develop a workable model for a hypothetical comparator because a means must be found to gradually dismantle the vertical and horizontal segregation of the labour market. I looked for a model elsewhere and the only one available was in the Netherlands which has since been abandoned. The Second Commission on the Status of Women did not propose a hypothetical comparator and I presume that was for very good reasons.

The issues I set out to address when I considered the hypothetical comparator option are complex and ingrained in the structure of the labour market. I examined the issue in considerable detail and I consulted widely with the public service, IBEC and ICTU on how it might apply. Unfortunately, it did not prove possible to develop a viable model for a hypothetical comparator that would achieve the results intended. The difficulties are also illustrated in the amendments submitted by Deputies Keogh and Woods.

Deputy Lynch hit the nail on the head. The issue of low pay is an entirely different matter and needs to be addressed by different legislation. In so far as I can do so in this legislation I have expanded the facility and range of positions in which an employee can make an application to the tribunal for equal pay. The place requirement restriction which existed in the previous legislation is overruled in this Bill which will widen considerably the possibilities for application. I am also providing that there will be no need for a contemporaneous position to apply. In other words, a comparison can be made with employment from a previous occasion that need not necessarily be contemporaneous with the current employment.

The nub of the issue, as Deputy Lynch pointed out, is the problem of low pay. It is another matter which has to be dealt with by a statutory minimum wage or whatever other means is appropriate. I am sure it will be addressed in due course.

Ms Keogh

Notwithstanding the point made by Deputy Lynch, we are dealing with the Employment Equality Bill and it is appropriate legislation. In spite of the difficulty in finding a model that would find favour with the Minister, it is an important principle.

Dr. Woods

The Minister mentioned the Second Commission on the Status of Women which felt this was an issue that had to be dealt with in principle. One of its key recommendations was the introduction of minimum wage legislation.

Mr. Taylor

That is a different matter.

Dr. Woods

Yes, but it is not before us.

Mr. Taylor

This is not a wages Bill. It is an employment Bill.

Dr. Woods

We need a mechanism.

The Select Committee divided: Tá, 9; Níl, 12.

Tá
Brennan, Matt.	Killeen, Tony.
Flood, Chris.	Kitt, Michael.
Keaveney, Cecilia.	Martin, Micheál.
Keogh, Helen.	Wallace, Dan.
	Woods, Michael.

Níl
Bradford, Paul.	Kemmy, Jim.
Burke, Liam.	Kenny, Séan.
Costello, Joe.	Lynch, Kathleen.
Crowley, Frank.	McGinley, Dinny.
Fitzgerald, Frances.	Pattison, Seamus.
Flaherty, Mary.	Taylor, Mervyn.

Amendment declared lost.

Chairman

Amendment No. 15 has already been discussed with amendment No. 14.

Dr. Woods

I move amendment No. 15:

In page 13, subsection (3), between lines 29 and 30, to insert the following:

"(c) the work is exclusively or mainly performed by persons of the same gender, and where there is no comparator within the meaning of subsection (3)(a) of this section the position of a comparator within the meaning of subsection (3)(a) of this section shall be replaced by a notional comparator,

(d) a notional comparator shall be person employed in work of a similar nature to that done by the primary worker and any differences between the work performed and condition under which it is performed by the primary worker and the notional comparator are of small importance in relation to the work as a whole, or occur with such irregularity as not to be significant,"

Amendment put and declared lost.

Section 7 agreed to.

Section 8 agreed to.