I think I have covered the points I wanted to make on that amendment, principally on the non-discrimination notice. I have no objection to the amendment. The points I made regarding the powers and the investigations are ones that I believe deserve the serious further consideration of the Minister.
Anti-Discrimation (Employment) Bill, 1975: Committee Stage (Resumed).
Debate resumed on amendment No. 6:
In page 2, between lines 39 and 40, to insert the following: `non-discrimination notice' means a notice under section 37".
—(Minister for Labour).
Mr. Fitzgerald
Question put and agreed to.
Section 1, as amended, agreed to.
SECTION 2
An Leas-Ceann Comhairle
Amendment No. 7 in the name of the Minister and the relevant part of Amendment No. 72 is consequential and may be discussed with No. 7.
That part of amendment No. 72 covers the reference to marriage in the long title and substitutes marital status. That is what is meant by "part of amendment No. 72".
In other words, we are only dealing with the first two lines basically of amendment No. 72?
Yes.
That is acceptable.
I move amendment No. 7:
In page 3, to delete lines 11 to 13, and substitute the following:
"(b) where because of his marital status a person is treated less favourably than another person of the same sex,".
The purpose of the amendment is to extend the terms of this section from discrimination on grounds of marriage, between persons of the same sex to discrimination on the grounds of marital status between persons of the same sex, so that a woman, regardless of her marital status, married, single or widow, must be treated equally with another person whether the other person is married, single or a widow. That part of amendment No. 72 which is consequential relating to marriage is altered to "marital status".
I have no objection to the amendment but I am sure it must cause the Minister to have a very red face because naturally, the suggestion is: this is the Anti-Discrimination (Employment) Bill, the equal opportunities Bill to bolster up the Anti-Discrimination (Pay) Act of 1974 and in view of the situation that exists as a result of that Act, surely the Minister must have grave personal reservations when this aspect of the 1974 Act has not been complied with. I mentioned earlier that we would come to sections dealing with the marital status of the individual and here we have section 2 reading:
For the purposes of the Act, discrimination shall be taken to occur in any of the following cases...
If we take the one which is amended, (b), it now reads:
where because of his marital status——
which, of course, means his or her status.
——a person is treated less favourably than another person of the same sex....
We now have the situation, particularly in the public sector, that from the point of view of equal opportunities, equal promotion opportunities, equal training access, equal access to employment, there can be absolutely no discrimination on the ground of sex or marital status but in the more vital Bill, the Equal Pay Bill, discrimination exists and continues to exist with the Minister for Finance, or more properly, the Minister for the Public Service being the principal offender. In my opinion the Minister must have red ears in introducing this amendment. While the amendment is acceptable, one must say that the lack of consistency in the legislation is almost laughable and can only be regarded by the public in the light that the Minister is now endeavouring to compensate by way of equal opportunity and access while yet not paying the same rate for the job. No matter how important conditions, opportunity and access may be—and they are all very important—the most important thing for any person married or single is remuneration.
All sexes are equal but some are more equal than others.
We have only two sexes.
And one could say there are only two types of marital status if you accept that a widow is a single person. I know the Minister's views. They do not coincide with those of his colleagues in Government. I do not think he should be asked to carry the can for Ministers who have let him down.
I think he is chauvinist.
He is a male chauvinist now.
Amendment agreed to.
I move amendment No. 7a:
In page, 3, paragraph (d) (ii), line 23, after "opposed" to insert "by lawful means".
This is a very simple amendment which I am sure the Minister will have no difficulty in accepting. It refers to paragraph (d) where a person is penalised for having in good faith opposed by lawful means an act which is unlawful under this Act. The reason for the amendment is, I think, evident: opposing in good faith by lawful means. If he did by any other means it would possibly be a criminal offence. I think the Minister should accept the amendment.
Although I am not convinced by the argument put forward, it is not a matter of great moment. I do not see how the difficulty that concerns the Deputy will arise under this section. We do not see what basis there is for this amendment, but I will have a look at it on Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 2, as amended, stand part of the Bill."
I made my comments on this section when we discussed amendment No. 7 and have nothing further to add. It is obvious to everybody and it does not need me in this House or elsewhere to headline the Government attitude in this regard. I know the Minister is embarrassed about the decision that was imposed on him in this respect.
Question put and agreed to.
SECTION 3
By agreement we will take amendments Nos. 8 and 11 together.
I move amendment No. 8.
In page 3, lines 34 and 35, to delete "(other than the remuneration and superannuation)" and substitute "(other than remuneration or any condition relating to an occupational pension scheme)".
The purpose of these amendments is to clarify that the conditions of employment referred to in 3 (1) and 3 (4) do not refer to remuneration. That is the subject of the Equal Pay Act and this Bill relates to training, promotion and job conditions, exclusive of the question of remuneration.
I accept the reason for the amendment. I presume service pay and all such remuneration is included in the word "remuneration" and I have no objection to the amendment being accepted.
Amendment agreed to.
Amendment No. 9 and amendment No. 36 are related.
I move amendment No. 9.
In page 3, to delete lines 38 to 40 and to insert the following:
"(2) An employer shall not, in relation to his employees or to employment by him, have rules or instructions which would discrimnate against an employee or class of employee, and shall not otherwise apply or operate a practice which results or would be likely to result in an act which is a contravention of any provision of this Act when taken in conjunction with section 2 (c).".
It is necessary in these amendments to clarify that discriminatory practices in employment would be unlawful. Amendment No. 36 provides the machinery whereby there can be reference for such cases in the public interest. The reason for amendment No. 9 is that where there is discriminatory practice in employment, we have the right to refer such cases for investigation, if they are in the public interest.
That is entirely acceptable. There is nothing controversial in it.
Amendment agreed to.
I move amendment No. 10:
In page 3, to delete lines 49 and 50 and substitute "where the circumstances in which both such persons or classes would be employed are not materially different,".
Amendment agreed to.
I move amendment No. 11:
In page 4, lines 5 and 6, to delete "(other than remuneration and superannuation)" and substitute "(other than remuneration or any term relating to an occupational pension scheme)".
Amendment agreed to.
I move amendment No. 12:
In page 4, to delete lines 10 and 11 and substitute "or class of persons where the circumstances in which both such persons or classes are or would be employed are not materially different.".
Amendment agreed to.
I move amendment No. 13:
In page 4, to delete line 18 and substitute "where the circumstances in which that employee and those other employees are employed are not materially different.".
Amendment agreed to.
I move amendment No. 13 (a):
In page 4, lines 19 to 23, to delete subsection (6).
I believe subsection (6) as it stands is not realistic. If we read it and are referring to the section dealing with discrimination by employers being prohibited, I submit that it is not possible to apply the terms of this subsection which reads:
Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee if he refuses or deliberately omits to promote that employee to a post for which the employee is qualified in circumstances in which other persons equally qualified are promoted.
As I read it, that subsection means that if five people are qualified for promotion to a post and if only one is promoted, the other four automatically have a grievance. Then the employer is the target of an investigation by the equality agency and possibly further action will result. In other words, it is impossible for an employer to achieve what is hoped for there because he cannot make five positions available.
I strongly believe that this section, while it forms part of the Bill, is not realistic, cannot be implemented and should not be included because it would be bad legislation and impossible to achieve.
We have a depressing picture, and the figures are there to support it. When we come to managerial and senior positions where real decisions are made in Irish industry, the number of women filling such posts is very few indeed. The Irish Management Institute ran a survey on this recently and came to the conclusion that undoubtedly a good deal of prejudice existed throughout Irish industry against the idea of women filling senior posts even where such were qualified. This section is so drafted in an effort to ensure that sex as a prejudicial factor in the promotion of people is eliminated as much as possible.
I take Deputy Fitzgerald's point that this is a difficult area in which to legislate. There is no question here of having to promote a person where there is no promotional outlet. If there are ten people eligible for three vacancies it should be possible to make an ordinary judgment on who are the best qualified to fill those posts. Only where in the opinion of those who examine the subject it is believed that the sex of the applicant was the determining factor in preventing that person being considered for the post, would this section have application.
I will undertake to look very carefully at this again between now and Report Stage, because I am not anxious to see something written into legislation that would be difficult to accept.
While I admit the Minister is being fair in his approach, this is one subsection upon which I must take a stand. Indeed, it is a reflection on the Minister himself. It is wide open to the interpretation I have given it and it should not form any part of this Bill. The subsection means that if there are three promotional opportunities and there are ten applicants the seven who do not get promoted have a justifiable grievance. That is the position.
We are operating here within the bounds of the EEC directive and this subsection is framed with our obligations under that directive in mind. The directive lays heavy stress on the development of equal promotion opportunities throughout industry. It is not possible for us to depart in a serious material way from the directive.
The Minister does not seem to have read the subsection. There is an old saying in my part of the country: "Do as your pastor says, not as he does." This is a glaring example of that philosophy. There is no particular reason why we should blindly follow an EEC directive, and here we have a subsection which is simply unrealistic. The subsection is absolutely crazy.
What is mad about ensuring equality of promotion opportunity between men and women?
I support the concept of equal opportunity. I have given the example of three promotion opportunities and ten candidates. Seven of those will be disappointed. One cannot fit seven into a box designed to hold three. It has been said that one can drive a coach and four through every Act of Parliament. Why should we provide an opportunity for that kind of exercise in this Bill? I support the Minister in his effort to achieve what he is trying to achieve but I insist that we do it in a realistic way. This subsection will create an anomaly. It will create a ridiculous situation. Let us delete it.
I support Deputy Fitzgerald in his plea to have this subsection removed. If it is left we may end up with a situation like that obtaining in the motor industry in the English midlands where they are always on strike. The Minister should withdraw this subsection.
This does not apply in cases where there are no promotional outlets. It applies only where there is a clear promotional outlet and where the approach can be shown to be biased on a sex basis. In such a case the section can be invoked by the aggrieved person. Remember, the Labour Court operates here. A serious omission would be evident were we to delete this particular provision. If there were no such provision discrimination could be practised. I do not think Deputies opposite are serious when they ask for the deletion of this.
There is absolutely no relationship between the principle the Minister is advocating and the contents of this subsection. The Minister has made a grave error in introducing it. I support equality of opportunity in promotion but I do not support a subsection that creates a ridiculous situation. I have explained the position. We accept the principle and that is why we are giving time to examining the Bill in great detail. This subsection should not be passed by a sensible group of people. Even a child could see that the subsection should not be passed. The Minister said that the Labour Court or the Employment Equality Agency were there to adjudicate. Why should we create problems for either organisation? I move that the question be now put.
This Bill is long overdue in Irish society. At the heart of this legislation is the equality of promotion opportunities throughout industry and without measures to defend this equality of promotion opportunities there would be no heart in the Bill. Section 3 deals with discrimination by employers. A person shall be taken to discriminate against an employee if he refuses or deliberately omits to promote that employee to a post for which he is qualified in circumstances where other persons equally qualified are promoted. I do not think it imposes an excessively onerous obligation on the employer. It means simply that in future decisions on promotion the employer must exorcise from his or her mind the idea that the sex of the person concerned should be the determining factor that decides if that individual should be promoted as against another.
Deputy Fitzgerald is not serving his own commitment to the idea of equality of opportunity when he insists on the deletion of part of a section, dealing with promotion, when he declares his outright opposition to it and when he states that it cannot be realistically worked. If we were to delete such a section from a Bill which sets out to promote equality in employment and in training we could be fairly accused of taking part in a purely cosmetic exercise in legislation. I heard many delegates to the Deputy's party Ard-Fheis speak at length on the necessity of providing greater equality for women in Irish Industry.
The Minister should stop the waffling and get down to the serious job of legislating. He should not be so childish. Let him stay with the Bill.
In all sincerity, I do not think—
On a point of order, what is the rule governing the Committee Stage of a Bill and the amendment we are dealing with now? Does it mean that a Minister can deal with another party's Ard-Fheis?
The Minister is entitled to make his statement.
I know the cosmetic exercise that is going on now. The Minister made a serious mistake here. He did not do his research beforehand and he has walked into a body blow. That is the position and he is trying to redeem himself now. In the interests of fair play, I would ask the Chair to ensure that he be confined to the section of the Bill about which he knew so little a short time ago.
The Minister is entitled to make his statement at this stage.
Just because Deputy Fitzgerald finds himself in such a bad humour it does not mean that discussion in the House should be confined as his humour dictates. We must discuss the elements of amendments and their merits. This Bill deals with the promotional opportunities available to women in Irish industry. The Deputy's insistance on deleting a section that protects that right to equality of treatment when it comes to promotion does not serve his frequently stated commitment to the promotion of equality throughout Irish industry. In that connection I noted that many of the delegates to the Fianna Fáil Ard-Fheis spoke of the necessity of ensuring that we have such equality of promotion throughout industry.
I do not think it places an excessively onerous imposition on an employer to ensure that prejudice with regard to the sex of a person concerned does not enter into the granting or withholding of promotional opportunities. Most employers accept in 1977 that the accidental element such as the sex of a person should not be permitted to come in the way of the suitability, qualifications and competence of an employee with regard to promotion. If the Deputy considers the matter fairly I am sure he will agree that such an obligation will not impair managerial efficiency and will not take away from the powers of managerial grades to promote people. However, it means that legislation of this kind cannot be silent when it comes to the question of promotion opportunities.
There are depressing statistics on the participation of women throughout Irish industry. In a work force where we have 26 per cent women, the statistics of women who hold managerial positions do not show a corresponding percentage. When we move away from the traditional female jobs, we find that only 1 per cent of engineers are women, that only 2 per cent are accountants—
The Minister should not make a Second Reading speech.
I heard the Deputy opposite talk about his ambitions for equality of promotion opportunities. We are talking about promotion here and I am protesting—
We are talking about subsection (6). The Minister made a mess of it and he is now waffling. This Government is on the verge of collapse.
The Minister should be allowed to speak.
The only person on the verge of collapse is the Deputy. He should calm down and take it easy.
We are discussing amendment No. 13a.
The amendment seeks the elimination of a section that is essential to the effectiveness of the Bill before us. Deputy Fitzgerald says he is equally wedded to the idea that the Bill before the House should be as effective as possible. He says he is not against the principle of equality of promotion and opportunities. When we come to the actual wording of the clauses, vital to making that principle a practical, working reality for women in industry, we find that he parts company with the policy he professes to espouse in his criticque of this Bill.
It is absolutely relevant on the Committee Stage of a Bill of this kind that we should discuss the reservations of Deputy Fitzgerald, that we should wonder exactly why he feels it is so necessary to make a stand on the elimination of so vital a subsection of this Bill. What has Deputy Fitzgerald got against equality of promotion for women in Irish industry? What is his opposition to that principle? He says it is unworkable as a principle and that he is not in agreement with it, but he does not advance any realistic arguments.
(Interruptions.)
The Deputy can relax. We have all the time in the world to discuss the reservations and the opposition of Deputy Fitzgerald to the principle that Irish women should have equality of promotion opportunities. All I can say to the Deputy is that he has chosen the wrong clause for battle.
I will keep the Deputy in the House long enough.
I will be delighted to be in the House discussing important and useful legislation. If it serves to educate Deputy Fitzgerald and to make him more agreeable to the rights of Irish women we will be doing a good day's work. This will take some time because Deputy Fitzgerald in his opposition to this clause appears to have ideas which certainly do not seem to me to be consonant with the provisions of this Bill. On the one hand, we cannot get away from the fact that there appears to be a certain prejudice operating against the promotion of women in industry.
The deletion of subsection (6) sought by Deputy Fitzgerald would seriously weaken the effectiveness of the Bill. We can say that not alone in industry is there not sufficient participation by women in senior decision making areas but whether we take the public service, trade unions or any area of administration we find that women have the minority number of posts and certainly not commensurate with the number of women serving in the work force.
We do not say in the subsection that an employer must perforce appoint a person to a senior position. We simply say that a person shall be taken to discriminate against an employee if he refuses—that is very significant—or deliberately omits to promote that employee to a post. He, deliberately, must refuse to consider the promotion of such a person. It is only in such cases, according to subsection (6) that the employer can be said to act against the section. It is only in such cases that the Equality of Employment Agency or the Labour Court, which will enter into this matter, can say of an employer that he is guilty of positive discrimination against an employee.
The subsection goes on to state that the employee must be qualified in circumstances in which other persons equally qualified are promoted. The aggrieved person must be able to prove that his or her qualifications are equal in every respect to those of the persons already given the promotion outright. All of those are practical items. If in a promotion outlet these could not be fulfilled, it could be said fairly of the employer that he had people fully qualified to take on the job and that he deliberately omitted to promote a person to a post in which, quite objectively, the qualifications required for the post and the service required for the post——
On a point of order, I feel that this matter has been discussed sufficiently. Could I ask that the question be now put under Standing Order 55? Could I ask you to send for the Ceann Comhairle?
The point may be put when the Ceann Comhairle is present.
Do the Opposition not get the same facilities as the Government in that respect?
The Government and Opposition are treated the same way when the Leas-Cheann Comhairle is in the Chair.
May I ask that the Ceann Comhairle be sent for?
The Minister has been waffling all the time.
The Leas-Cheann Comhairle may not send for the Ceann Comhairle. It is only when the Ceann Comhairle is in the Chair that such a question may be put to him.
I have heard the Government putting that question when the Leas-Cheann Comhairle was in the Chair and the Ceann Comhairle was sent for.
The present occupant refused to take such a motion from the Government and told them that they would have to wait until the Ceann Comhairle was in the Chair.
On a point of order, may I say one thing at this stage? It is essential for the proper running of any Parliament that we have a pairing system. Here, for the past four years, with Deputy John Kelly as Parliamentary Secretary to the Taoiseach, that pairing system has worked out very well and has been honoured by both sides of the House. Today, because the Parliamentary Secretary is not here, the man who is acting in his place has apparently let away the whole Government side. This farce is going on.
I want to say——
Will the Minister sit down and have manners?
(Interruptions.)
Deputy Browne.
I am making a point of order quite calmly. The present occupant of the post for the time being is now destroying something that has been honoured and has been part of the House for a long time. If he deliberately let his Deputies go home and then advised the Minister and other people to keep up this farce in the House that finishes pairing as far as we are concerned. Never again can we honour anything that we receive from the Government side of the House. It is a sad day for this House that this sort of thing is allowed to continue and that a Minister makes a farce of this House.
I protest, a Leas-Cheann Comhairle. I am speaking on the amendment.
We have been trying to facilitate that Minister with his Bills. What sort of facilities can he expect from this House in the future? He can do what he likes with his Bills now. He will certainly get no co-operation from this side. I am sorry that the Parliamentary Secretary, Deputy Bruton, has stooped to this sort of carry on. I have been dealing with him—I am the person concerned —for the last two days, yet he allows this sort of thing to happen.
: I submit that Deputy Browne's intervention was not a point of order and was a gross abuse of the facilities given to Deputies to raise points of order.
The Minister.
Answer the charge.
Deputy John Kelly, when he returns, will be damned sorry about what has happened here. I will say one thing for the Parliamentary Secretary to the Taoiseach, he would never stoop to that sort of thing; he will be damned upset when he returns, and he should be too.
I think we should really get back to the Bill.
And to the section of the Bill.
On a point of order, Deputy Lalor raised a point that the question be now put.
That has already been dealt with.
I want to submit that the Chair is partisan, that he is protecting the Minister, that there is no question about it on this occasion.
The Deputy will sit down.
The Minister is being protected by the Chair.
The Deputy will sit down.
The Chair was asked to send for the Ceann Comhairle to adjudicate on this occasion and he did not do so.
The Deputy will resume his seat.
The Chair was asked to send for the Ceann Comhairle in order that the matter might be clarified.
The Deputy is in complete contempt of this House.
I submit that the Chair is out of order in not heeding the reference of the Whip of the Fianna Fáil Party.
The Deputy is in complete contempt of the House. The Deputy will leave the House. The Deputy thinks he can do as he likes in this House.
The time of this House is being taken up——
The Deputy is in complete contempt of the House.
I feel that the Chair is again protecting the Minister——
The Deputy accused the Chair of the same previously. The Deputy previously accused the Chair.
——just as the Ceann Comhairle protected Ministers in the past. If the Chair feels I am wrong then he should send for the Ceann Comhairle and let him decide because I feel that Deputy Lalor, who moved the motion that the question be now put——
The Deputy will resume his seat.
——was completely in order——
The Deputy is completely flouting the authority of the Chair.
——and was consistent with the Standing Orders of this House. It is a sorry day for this House that Standing Orders be disregarded in this manner.
The Deputy is completely flouting the authority of the Chair and he has consistently done so.
He refused to send for the Ceann Comhairle when asked to do so by me.
The Deputy has no respect for the House.
He refused to send for the Ceann Comhairle.
The Deputy has no respect for the Standing Orders or anything else. He has none. In my experience in this House I have never seen conduct like this.
(Interruptions.)
Put the blame where it lies.
Will the Deputy resume his seat?
Until such time as there is justice in this House I will not sit down. All we want is justice, to ensure that the time of this House is not deliberately wasted in the manner in which it has been by the Minister for Labour and indeed by the other members of his party.
The Deputy will resume his seat. The Chair has told him he is in complete contempt of both the Chair and the House.
What does that mean?
What next?
I think he will adjourn the House.
(Interruptions.)
Will the Deputy resume his seat?
We want to get on with the business of this House.
By golly, the Minister will not adjourn this House.
He will do exactly what he is expected to do; he will do exactly what he was sent here to do.
Is the Deputy going to resume his seat?
Until such time as justice is done here I am not going to resume my seat.
The sitting of this House is suspended and the Dáil is adjourned until 2.30 p.m. on Tuesday next.
The Dáil adjourned at 4.40 p.m. until 2.30 p.m. on Tuesday, 29th March, 1977.