As I explained already, section 14 (2) (e) covers the case made for this amendment. I will have a look at lighthouses again between now and Report Stage.
Anti-Discrimination (Employment) Bill, 1975: Committee Stage (Resumed).
Debate resumed on amendment No. 24:
In page 5, subsection (1), after line 33, to insert the following paragraph:
"(f) in lighthouses, lightvessels and lighthouse tenders operated by the Commissioners of Irish Lights".
—(Deputy Dowling.)
Lightships and lighthouses.
It seems to me that the case made for this amendment portrayed a wrong conception of what the Bill is all about. In support of his amendment Deputy Dowling argued that there was a need to protect women from the hazards of working on lighthouses. A great deal of the discrimination which exists, exists under the guise of protecting women from various hazards and hardships.
The Bill is designed to give women the opportunity to take up employment on equal terms with men in all areas hitherto closed to them. Let women themselves be the judges of whether the job is suitable for them. For far too long the judging has been done for them. Of course, there are jobs which are not suitable for all kinds of people, and there are people who are not suitable for all kinds of jobs. I know jobs which are not suitable for men, and I know men who are not suitable for them. We do not insert a paragraph in a Bill to exclude them from that kind of employment. I suggest it should not happen in this case either.
On several aspects of discriminatory legislation the argument has been made that sanitary and sleeping accommodation prohibits the opening up of certain jobs to men and women. That argument is pretty well overplayed, particularly in relation to sanitary accommodation. We have all had experience of communal traffic on trains and planes, and we still have not got to the stage where we have to send a special train or a special plane for women passengers, or men passengers, as the case may be. That argument can be overplayed when people want to resist change in this area. The Bill is intended to open up all areas of employment to women. For practical purposes, if there are reservations they are covered adequately in section 14 (2) (e) of the Bill. Therefore, Deputy Dowling's amendment is not necessary and I do not see any reason why the Minister should have another look at it.
Deputy Dowling asked the Minister whether he wanted to put girls working on lighthouses. I submit it is not a question of what the Minister wants or does not want. It is what women want. If women want those jobs, they have the right to decide for themselves. For far too long discrimination has been preserved under the guise of protection. That should be finished with and let women who are rational, intelligent, adult, human beings decide for themselves. I would oppose any change in this area.
There is no reflection on the ability of women to do particular jobs. The basic conditions in lighthouses and rock stations cannot be changed. They cannot be extended because, in most cases over the years, they have been extended to the limit. The facilities there are not suitable for women for employment of the type Deputy Desmond suggested they might like to pursue. Sanitary and sleeping accommodation could not be provided for them. Deputy Desmond seemed to suggest that if women are prepared to accept communal living with men on lighthouses, that is all right. I do not hold with that. She seemed to imply that if women are prepared to accept communal living, communal sanitary and sleeping accommodation with men that is OK. I do not think that is right.
I did not say that.
There should be certain protections in this Bill. If there are areas where women can be employed, there is no reason why they should not be employed. The rocks cannot be extended. The lightships are purpose built. The women I know would not be prepared to take their chance in communal living in lighthouses. I would ask the Minister to ensure that the Commissioners of Irish Lights are protected from the point of view of the efficiency of this important service which protects mariners.
I do not want to see the entire Committee Stage of this Bill marooned on the promontories of the Irish coastline or the rocks around our coast. Section 14 (2) (e) provides:
Where because of the nature of the employment it is necessary to provide sleeping or sanitary accommodation for employees on a communal basis and it would be unreasonable to expect the provision of separate such accommodation or impracticable for an employer so to provide,
Therefore, an exclusion possibility is open to an employer. I explained to the Deputy that if we are to give an exclusion for lightvessels, and so on, we will be forced logically to give consideration to excluding small ships in general. One of the purposes of the Bill is to open jobs to women which have hitherto been closed to them by custom or general practice. That is why we have kept the number of exclusions to the minimum.
I do not favour excluding shipping and the fishing industry from the scope of the Bill. If they so wish, women should be free to get jobs on board ships and in the fishing industry. There are some indications of a growing interest on the part of women in the fishing industry which is expanding. If there are real problems of accommodation referred to by Deputy Dowling, there is a section which gives the employer who would look for an exclusion in such circumstances a way out. He will have to prove in accordance with section 14 (2) (e) that it would be impracticable to provide separate accommodation under the headings I have mentioned. That is adequate to meet the Deputy's case and any fears he may have about lighthouse accommodation. As I said, I will look at it again between now and Report Stage.
There is a distinction between lighthouse tenders and lightships and lighthouses. Would the Minister include lighthouses and lightships as distinct from tenders which can be brought into dock and modified? A lighthouse cannot.
I will look at this problem between now and Report Stage.
Is the amendment withdrawn?
If the Minister will insert an amendment of his own on Report Stage, I will accept that.
Amendment, by leave, withdrawn.
I move amendment No. 25:
In page 5, to delete lines 44 to 48 and substitute the following:
"(3) Sections 15, 16 (b), 17 and 23 shall not apply to the selection, by the Local Appointments Commission or the Civil Service Commission, of a person for appointment to an office or position.".
The purpose of this amendment is to provide that only the selection processes of the Civil Service Commission and the Local Appointments Commission will not be subject to the investigation of an equal pay officer of the Labour court. That is the purpose of deleting lines 44 to 48.
It appears that the provisions of this Bill are directed towards the private sector rather than the public sector. We should avoid that and I would ask the Minister to withdraw the amendment. The Local Appointments Commission make appointments and promotions in local authorities and in other branches of the public sector. If that sector does not set an example for the private sector, there is no hope that this Bill will work. It reminds me of what happened with regard to the legislation dealing with equal pay. It has not been implemented fully in the public sector. The House should not agree to an amendment that excludes the public sector from the provisions of this Bill.
I agree with what the Deputy has said. This is a further example of inconsistency. Deputy Dowling made a request on behalf of a small number of people but in this case there is a massive exclusion of people appointed by the Civil Service Commission and the Local Appointments Commission.
As Deputy Geoghegan-Quinn pointed out, the Local Appointments Commission operate throughout the country and they are one of the most influential appointment bodies. Those of us who are members of local authorities know that traditionally many areas of employment are regarded as the prerogative of men but this need not be the case. I remember the occasion when the first woman did an engineering course in University College, Cork. It was regarded as most unusual at that time but now the scene has changed drastically and very much for the better.
I do not understand how the Minister could contemplate excluding an entire sector, as he is proposing here. Is he telling us that the Civil Service Commission or the Local Appointments Commission are above this legislation? It is a ridiculous anomaly. The Minister appears to concentrate entirely on the private sector. I realise that there could be problems in the public sector as well as in the private sector but that does not justify the Minister making this massive exclusion.
There was a certain amount of confusion in the section as originally drafted but in this instance the amendment clearly excludes the appointments made by the Local Appointments Commission and the Civil Service Commission. The Minister has a duty to tell the House how many appointments were made by both of these bodies in the four years since he has been in office. I expect the number is substantial and it means that large numbers will be excluded. Section 6 affects private employment agencies and the National Manpower Service and the exclusion in this instance is at variance with that provision.
The Civil Service Commission and the Local Appointments Commission are excellent bodies and I have never heard any questions raised about their appointments. Last night we debated a motion in this House. That matter related to the political skulduggery that went on in a certain county; in that instance it was not a question of sex discrimination but political discrimination. An unsuitable candidate was appointed to a position and the man responsible is now a Minister of State.
The Local Appointments Commission and the Civil Service Commission are admirable bodies but as far as this Bill is concerned they are entitled to discriminate against women if they wish. Section 2 states:
(a) where by reason of his sex a person is treated less favourably than a person of the other sex,
Both of the bodies concerned can so discriminate and they will not be brought to an inquiry under the terms of this Bill. Similarly, if they treat a person unfairly or discriminate against somebody on marital grounds, they will not be penalised under the terms of this Bill.
The Minister has a duty to withdraw the amendment. We should set an example in the public sector. It is difficult for those in the private sector to understand why their appointments may be investigated by the agency appointed under this legislation when this does not apply to the public sector. The Minister should explain why there is this exclusion. He should also tell the House the number of persons appointed by the two bodies referred to from 1973 to date. By dividing that number by four we could have an annual figure of how many people are being excluded. The Minister told us he has kept the exclusions to a minimum but in this instance an accusing finger can be pointed at him, as was done on the matter of equal pay. I am sure the Minister will have the figures I requested because, obviously, it must have been researched before the amendment was brought before the House.
It is true I have kept the exclusions to a minimum and that has been my objective in this legislation. I should like to make it clear that people appointed in any part of the public sector come within the scope of this legislation; in their training and promotion all the provisions of the Bill will apply. All that is sought here is that the actual selection process of the Civil Service Commission, which is an autonomous agency, will not be subject to the provisions of the legislation.
The criteria adopted by the Civil Service Commission have not been questioned in the past, certainly not in the lifetime of this Dáil. That criteria are based on the merits of the candidates. The exclusion was included because of the nature of that recruiting agency for the public service. I should like to make it clear that it is only the selection process that is excluded. So far as people appointed to the public sector are concerned, in their training and promotion the full provisions of the Bill will apply.
I asked for figures. Are they not available?
They are not immediately available. I can get them for the Deputy. There is no problem about that.
I would have expected it to be part of the Minister's argument to say how small the groups were but the argument does not stand up because it is the selection process which is excluded from the Bill. We are prepared to accept the word of a certain group of people and to say that a certain body cannot err. A person who may feel aggrieved or may claim to have been discriminated against has no redress under this legislation, yet in the private sector the field is wide open. If we are serious about the introduction of social legislation, about industrial peace, about equal opportunity of promotion, appointment and selection for women, then let us set the headline in the public sector and in no way exclude these appointments bodies from the terms of this legislation.
The Minister knows that he is defending a very weak position. I know that he believes in the truth of what I am saying and that this amendment should not be made. Where has the pressure come from for the giving of this sacrosanct power to appointments bodies within the public sector? We constantly hear the complaint from the private sector about how well the public sector is protected. Unfortunately on this occasion the public sector is protected in an entirely different way. Both these appointments bodies are excellent and should be open to scrutiny if somebody feels aggrieved or discriminated against. I would ask the Minister to withdraw this amendment and give an assurance that he will re-examine the situation between now and Report Stage and produce the figures for the four-year period to which I have referred so that we can get an average of the numbers excluded annually. Any number of years would do.
Are the implications of this provision a reflection on the appointments bodies themselves? Has extreme pressure been brought to bear on the Minister or does he genuinely feel that these two bodies should not be open to review? None of these arguments justifies the exclusion of the Local Appointments Commission or the Civil Service Commission. They may be absolutely fair in their appointments and there may never be allegations of discrimination made against them. That is not important. It is important that the same facility must be given to the individual in the public sector as is given to the individual in the private sector.
I do not want to hold up the passage of this legislation any longer than necessary but I should like to seek clarification of this amendment. The case can be made that the Local Appointments Commission and the Civil Service Commission will abide by this legislation. I should like to ask the Minister if, on the passage of this legislation, appointments as trainee technicians, for example, will be open to girls?
I have explained that this whole area will be opened up and this legislation will take effect throughout the public service.
What about my queries? Why exclude these selection bodies? We all know that there is no hindrance to anybody in entering the public sector or in applying for the jobs available but there appears to be a shielding of these two selection bodies. They may never discriminate and probably never will. In all probability they would be models and would never have a case of discrimination brought against them. The Minister will have to explain to the House the grounds for this exclusion. We are entitled to press for this information. We are cooperating with the Minister on this Bill and we will continue to do so but unless there are grounds for this exclusion we cannot accept this amendment.
The view is that the selection processes are the only ones that are excluded. In making appointments throughout the public service these bodies will have to obey the provisions of this legislation. Certain grades in the civil service are at present single sex, for instance, there are clerical assistants (female) and post office technicians (male). This differentiation must cease on the passage of this Bill. That is understood. We have looked at the workings of the Civil Service Commission and the Local Appointments Commission and there is no evidence to suggest that there has been any sex discrimination in their work in the years preceding this legislation. All that is sought is the exclusion of the selection process itself.
That is what we are arguing about.
It is the examination of the matter that is excluded.
As I said this morning, there will be trivial claims, human nature being what it is, and there will be justifiable claims as well. I expect that there may never be a case against either of these bodies but the opportunity must be there for an individual to seek redress in the same way as in the private sector. It seems that, for some reason or another, the Local Appointments Commission are not being asked to answer to the Employment Equality Agency. It is not those people for whom we are legislating; we are legislating for the person who may be interviewed before that body. Those people must have access to that agency if they feel they have a grievance. They may never feel it but the access must be provided. Because I feel the Minister agrees with the sentiments being expressed, I would ask him to withdraw the amendment and research it further between now and Report Stage because it is not acceptable in its present form.
At this point I would have to proceed with its insertion. I shall have a look at it again between now and Report Stage but I must insist on the amendment going in.
Can the Minister give us a good reason why it should go in?
I have done my best to give reasons for its insertion. The Deputy may say they are inadequate, that may be in the nature of the case.
Might I appeal to the Minister to withdraw the amendment in the interests of having a good Bill? We want the Bill to be a good one even if the Minister does claim kudos for it at election time. We want it to be worth while, not having it discriminatory within itself, which it will be if one body can get away without any investigation or anybody raising objections against it.
I will look at it between now and Report Stage. If the Deputy feels like a division on this— if I cannot meet him to some extent on Report Stage—he could have it then.
Is amendment No. 25 agreed?
I am not so sure that it is agreed but it is not opposed at this stage.
Amendment agreed to.
Question proposed: "That section 10, as amended, stand part of the Bill."
I want to make a few points on the section itself. There have been a number of amendments which have given it fairly extensive coverage. I note that subsection (2) (a) says that notwithstanding subsection (1), the Minister may by order declare that this Act shall apply to such class or classes of employment referred to in that subsection as may be specified in the order. In new legislation I suppose this is desirable. Certainly I would hope that the exclusions already part of the Bill—I am referring particularly to employment in the Garda Síochána and in the prison service about which we failed in our vote this morning— would be kept under constant review. I am somewhat worried by the exclusion in sub-paragraph (d) of subsection (1). I think I know what the Minister is trying to get at by this exclusion. But suppose a person has a business in a private residence, in the garage of the home, what is the position then? Is there an exclusion in that respect? I would ask the Minister to ensure that the paragraph as it reads is specific enough and not open to abuse by somebody operating a small business in his backyard, garage or some such place who might claim to be excluded under that subsection.
I do not think that the description "close relative" has been defined. Who decides what is a "close relative"? How close is a "close relative"? To what degree of relationship does it extend, again, to prevent abuse there? Perhaps the Minister would examine that paragraph between now and Report Stage with a view to tidying it up. I do not want to make any of this legislation a sort of bonanza whereby legal people can find all sorts of loopholes, making cases where none should be made and creating problems for all concerned.
Question put and agreed to.
SECTION 11.
I move amendment No. 25a:
In page 5, before section 11, to insert the following section:—
"11.—This Act shall not apply—
(a) where the total number of employees does not exceed five persons (including part-time employees), or if the employer has more than one establishment the total number of all his employees does not exceed five persons,
(b) where special treatment is given to women in connection with pregnancy or childbirth,
(c) where special provisions are made in relation to pension schemes,
(d) where by tradition the membership of particular religious professions are restricted to one sex."
There are some exclusions listed here that I have constantly believed would help all our social legislation. The small employer gives me a lot of cause for concern. There are throughout our community many such people who are not perhaps familiar with legislation emanating from this House and perhaps not financially equipped to comply with all of its conditions. I am not for one moment suggesting that such people be entitled to discriminate in any way. I have been consistent in my pleas here for exclusion of people with under five employees. That is not because I want to afford them any liberties, not because I want them to be allowed discriminate in any way, on grounds of sex or marriage but in regard to this entire package of social legislation some of them are constantly worried and saying: "There is new legislation now. I should take on another one or two people and I am not going to". In other words, encourage these people but give them a little protection while they are so small.
There should also be a specific exclusion where special treatment is given to women, for example, in connection with pregnancy or childbirth. If there cannot be equality there, they are entitled to a special circumstance situation. They are not entitled to be asked to do the same work for at least part of that period. But facilities should be made available to them to work for as long as they like or can healthwise and so on. I should like to see that facility specifically provided in the Bill. The Minister may answer that it is so provided in another section. But I could not find where that type of special facility or flexibility within their places of employment was given to women in such circumstances. This may be over and above an equal conditions situation.
Paragraph (c) of my amendment says:
Where special provisions are made in relation to pension schemes,
The Minister may say that that is excluded already. This is a very wide area, one about which we will be hearing a lot more in the near future, with the current European discussions and so on taking place. I refer especially to private industry here. We all want to see the introduction of an overall pensions scheme in industry generally, private as well as public. It exists already in the public sphere. There have been rapid strides made in that direction. But anomalies can arise in relation to these schemes. I think private schemes, for the most part, take the woman's retiring age at 60 and the man's at 65. Because they are talking in a term of years, say from the present day to retiring age, the premiums are payable in respect of men and women and special allowances have to be made in relation to such schemes.
No doubt in the not too distant future we will have the bones of an overall pensions scheme and this will present a lot of administrative problems because of the necessity to amalgamate present schemes, some of which are in no way comparable with others, some of which are good and some bad, probably the worst being CIE. There are areas which deserve special consideration. Deleting the section completely, as the Minister has done, may give an impression that we are now interfering with religious groups. However, I do not propose to divide the House on this amendment.
I am glad Deputy Fitzgerald has announced his intention not to press the amendment, which I do not think would improve the Bill. There are people who will have difficulty in coming to terms with all the legislation passed in the area of employment, but there are ways available to convey this information to them. Therefore to say that people do not know is not a good defence for the case being made. Deputy Fitzgerald spoke about the need to encourage small employers to take on an extra employee or two. If this amendment were accepted it would have the reverse effect. On the question of special treatment for women in pregnancy or childbirth, there are provisions in the social security code and there is therefore no need for inclusion in this Bill.
Generally we discussed these matters at other points of the Bill, particularly the vexed question of excluding firms of a certain size. That would not be desirable. On the question of preferential treatment for pregnant workers, I will have a look at it before Report Stage. However, I do not think we can deploy any reasonable argument in favour of the exclusion of employments involving five or fewer workers. For instance, in a small shop employing four, a girl should have equal chances in employment even though the work force is relatively small. For these reasons I do not propose to accept the amendment.
In regard to amendment No. 25a, I was endeavouring to be consistent in my approach to all social legislation. The ideal position would be that people would know from the legislation itself how they were affected. The reality is that they do not. Most small shopkeepers and businesses are not members of employers' organisations. They are tied up trying to keep little shops floating and there are no organisations to provide them with information. However, it is not a point I would wish to divide the House on.
Amendment, by leave, withdrawn.
Question proposed: "That section 11 stand part of the Bill."
This, like section 8, is an all embracing section. It states:
Nothing in this Act shall make it unlawful for an employer—
(a) to refuse employment in a position to a person who will not undertake all the duties attached to that position or who will not accept all the conditions under which those duties are performed, or
(b) to dismiss from his employment a person not undertaking all the duties attached to the position held by that person.
This could be wide open to abuse. An employer could use it, as it stands, to get around the entire Bill. Of course an employer is entitled to reject an unsuitable or an incompetent person or one who has not the required qualification for a particular job. Nobody is denying that right to an employer, but I do not think it makes for good legislation to have provisions like those in sections 8 and 11. Therefore I ask the Minister to tidy it up before Report Stage. The first paragraph makes it lawful for an employer to refuse employment to a person who is unsuitable. Is it necessary to write in such a provision in the Bill? In my opinion it is not.
I wish to support Deputy Fitzgerald. In times of high unemployment an employer might well write in that an employee may not join a trade union or must join a certain trade union.
It is Victorian to write such a provision into a Bill. I agree an employer must have a right to select an employee and must safeguard the well-being of his firm by employing those whom he thinks possess most ability, but I cannot understand why the Minister writes such a provision into a Bill because it can be abused, particularly at times of high unemployment. When there is high unemployment people agree to almost anything an employer suggests in order to get a job. The Minister should have another look at this provision. The Bill would be greatly improved without it.
This is a provision which I do not very much care for but it is one that employer groups insisted on being inserted to protect them from what they saw as a far-reaching change in legislation in this area. As Deputies have stated, it is a common sense situation that if a person is not ready to carry out the duties of a job for which he was employed he should not be employed in that position. Employer organisations made the point on many occasions that this provision should be written into the Bill. It must be clear that if the aggrieved person is convinced that he or she was not employed for discriminatory reasons the redress machinery provided in the Bill is available. The provision was inserted to deal with the common sense situation, as employers saw it, of a person who was not ready to carry out the duties he was employed for.
The Minister will recall that the Women's Representative Committee in their submissions had reservations about this section. Their case was that it is normal employment practice to accept all the conditions of a job, whatever that job may be, and they did not think it was necessary to write such a provision into the Bill. In fact, they felt it was dangerous to write in such a provision because an unscrupulous employer might vary the conditions of employment even while women were in the job. An unscrupulous employer might introduce an element of heavy physical employment into a job thereby making it impossible for a woman to remain in the job. It might be argued by the Minister that there is other legislation under which they could have redress but this seems to be a dangerous provision and the Minister should have another look at it.
I will have another look at it.
The three words "all the duties attached" is leaving this provision open to all sorts of abuse. I hope the Minister has heeded the fears expressed by both sides of the House in this regard. One of his own Deputies has agreed with us on this point. While it is a good thing to have discussions with employers and trade unions in order to improve legislation, it is the Minister's duty to ensure that any legislation passed here is the best possible. It is the duty of the Opposition to co-operate in any way possible in this regard. Under this provision an unscrupulous employer may when interviewing females and males for any position pile on the duties for females. He would be discriminating in that way. This is a reasonable argument and a reason why the section should be tightened up so as to avoid any pitfalls that may arise.
I will have a look at the provisions between now and Report Stage.
Question put and agreed to.
SECTION 12.
I move amendment No. 25 (b):
In page 6, lines 8 to 19, to delete subsections (2) and (3).
Subsection (1) states:—
Notwithstanding any provision of this Act, nothing done by an employer in compliance with any requirement of or under an Act to which this section applies shall constitute discrimination in contravention of this Act.
That part of the section is acceptable but subsections (2) and (3) are not. I do not wish to be personal in my contribution because the Minister may not be long in that position and his successor may come from these benches in the not too distant future. However, whether it is this Minister or his successor, we are giving extensive powers to a Minister to amend or change. I have already suggested to the Minister that under this Bill he gives himself, or his successor, the power to amend a section by order in the event of the climate being right to effect a change. Under this section powers are given to a Minister to interfere with the Conditions of Employment Act, 1936, the Shops (Conditions of Employment) Act, 1938, the Factories Act, 1955, and the Mines and Quarries Act, 1965, by ministerial order. I do not agree that any Minister is entitled to assume to himself such mandatory powers. It impresses me as being bad legislation.
If the Minister, after thoroughly investigating the Bill, finds it necessary to introduce certain amendments he has power to submit the formal amendments to the House. If his reasons for doing so meet with our approval and the sections he proposes to change are found to be discriminatory he will get our support, but I question the right of any Minister to take on to himself such extensive powers which cover this Bill and four Acts. I have no doubt that certain sections of those Acts should be amended but they should be specified in this Bill so that we can consider them. Any reference to the Conditions of Employment Act, 1936, prompts me to remark that the Act is a tribute to a former Taoiseach.
That was a great Act and one ahead of its time. It has served the country and employment well. Rather than push these subsections through I would suggest to the Minister, and he will have the co-operation and assistance of this side in doing so, that he should introduce whatever amendments are necessary in the light of experience. There is no reason why such amendments should not have been found in the interim and, if they are introduced on Report Stage, then we can agree or otherwise to them.
Subsection (2) provides that any order made by the Minister must be laid before each House of the Oireachtas and the order may not be made until a resolution approving the draft has been passed by each House. There is ample scope there for a full-scale debate in both Houses with all the safeguards and controls such a debate entails.
That does not satisfy my point. It should have been possible to discover what amendments are necessary before the Bill was debated here and that would have given us an opportunity of commenting. I know orders made by Ministers can be discussed by both Houses but I do not regard this method of proceeding as good legislation. The time to examine Bills thoroughly is before they are passed.
This provision is a usual feature of all legislation and there is no danger of a Minister assuming excessive powers remembering that he has to come back to both Houses of the Oireachtas.
Amendment, by leave, withdrawn.
I move amendment No. 26:
In page 6, between lines 9 and 10, to insert the following paragraph:
(b) Before making an order under this subsection the Minister shall consult such trade unions, employers' organisations and organisations of trade unions or of employers' organisations as he considers appropriate.".
The purpose of this amendment is to ensure the Minister will consult with employers and unions before making an affirmative order to repeal any legislation affecting women in employment. This is similar to a section in the Holidays (Employees) Act, 1973. This is an extra safeguard.
I would always approve discussion with interested parties in this type of legislation. It is important that the points of view of both sides should be taken into consideration when framing legislation but the responsibility for the introduction and subsequent effective operation of the legislation is the responsibility of the Minister. The final responsibility rests with the Minister. There are kudos of office but there are also responsibilities of office. This does at least guarantee consultation. Again, let me point out once more that the time to effect desirable amendments is at the time of the introduction of new legislation.
I support the principle of consultation. How great is the scope of consultation? Would the Minister consult with bodies which are not affiliated?
Normally consultation takes place with congress or with the FUE but I have met trade unions which are not affiliated.
Would the Minister consult with these?
I have met them and I would discuss with them any matter they wish to discuss with me particularly in regard to protective legislation. There would be no difficulty. Either I or my officials would meet them. That is the practice of the Department.
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.
I move amendment No. 27:
In page 6, line 20, to delete "an employer" and substitute "any person".
This is a simple amendment to make it clear that not only do we intend that employers but also such bodies as AnCO and trade unions, employers organisations and other such organisations, should be free to discriminate in favour of women in regard to training for work in which they had not been engaged in the previous 12 months.
Amendment agreed to.
Amendment No. 27a not moved.
Question proposed: "That section 13, as amended, stand part of the Bill."
The purpose of this section is to allow employers to give additional training or training for the first time to women employees where it has not been the tradition for women to fill posts in a particular category and to ensure that the employer who gives such training will not be guilty of discrimination. It is necessary to make it possible for women to compete on an equal footing for jobs which have traditionally been the preserve of men.
I am glad the Minister explained the intention of this section. Would the same facilities be affored to men?
It operates both ways.
We had a reference to the midwifery profession this morning and it would probably take men some little time to learn the intricacies of that profession.
I do not think I will say any more about that.
I welcome this section. Discrimination is essential in this particular area. The section allows any person to engage in courses. Women have all their lives been conditioned to lack of confidence in themselves and these training courses will build up their confidence and equip them to compete on equal terms with men when the actual job arises and the interview takes place.
I am glad the Minister is affording some protection to us men in this Bill. As the law stands at present, there may be discrimination against women who need extra training. However, the employer may feel it is unfair to ask him to pay for the training and to pay the person while she is being trained, and that it would be much better if he took on a trained person which might be a man. Therefore, he will take on the man because the woman is not trained, even though the Bill has facilities for training the woman. The Minister might consider offering some compensation to the employer who gives extra training in order to show that he is no male chauvinist and that he wants to be fair to women. I think it is unfair to ask him to foot the bill for the training.
Question put and agreed to.
SECTION 14.
I move amendment No. 28:
In page 6, to delete lines 34 to 37, and substitute the following:
"(a) where, on grounds of physiology (excluding physical strength or stamina) or on grounds of authenticity for the purpose of a form of entertainment, the nature of the post requires a member of a particular sex because otherwise the nature of the post would be materially different if carried out by a member of the other sex,".
We thought it necessary to clarify what was meant here in regard to the sex occupational qualification. What we wish to ensure by this amendment is that it is not intended that a woman should not be considered for a job because physical strength or stamina is the major requirement for the job. Since physical strength and stamina are generally associated with the male sex, we wanted to have further clarification of that characteristic of the job. The amendment has the effect of basing judgment in such questions on the physiology, on a scientific assessment, of the person concerned, which means that the employers, the Labour Court or the courts of law would have to consider whether the individual man or woman in question possessed the characteristics necessary for the job. In other words, the individual himself or herself, rather than the sex of the individual, would be the determining factor.
The Minister is obviously walking on thin ice and I do not want to go too near the middle of the pond either. I do not say I agree entirely with the wording of the amendment as it is before us: "on grounds of authenticity for the purpose of a form of entertainment". I see what the Minister is getting at, but it would be difficult to adjudicate on this question. From both sides of the fence there could be serious arguments. It will probably be one of the most difficult matters on which the equality agency will have to adjudicate. I appreciate the Minister's dilemma. I would like to be able to suggest an amendment that would improve the situation but it is not an easy matter.
In regard to the acting profession it would be possible for a woman to play a male role or vice versa. A woman could play Julius Caesar but arguably it would be a different performance from that of a man in the same part. These are the difficult changes that can be rung on the amendment in this area.
It has been done.
It has been done. I agree with the Deputy it is thin ice, but we thought this was the fairest amendment we could present.
In the entertainment business there has always been interchangeability between the sexes. Certainly a good performer could put it across. However, there is no objection to the amendment. If I thought the Minister by taking back the amendment and possibly redrafting it——
We shall keep looking at it between now and the Report Stage.
I think the Minister should.
Amendment agreed to.
I move amendment No. 29:
In page 6, to delete lines 41 to 45, and substitute the following:
"(c) where an establishment or institution is confined (either wholly or partly) to persons of one sex requiring special care, supervision or treatment and the employment of persons of that sex is related to either the character of the establishment or institution or the type of care, supervision or treatment provided in it,".
This amendment makes it quite clear that this exclusion would not permit single sex schools to employ teachers of one sex only.
This has long been established. It is one of the areas where there has been a reasonable approach, the sex of the teacher rarely, if ever was considered in such an appointment. However, I have no objection to the amendment if the Minister thinks it is necessary.
Teachers appear to think so.
Amendment agreed to.
I move amendment No. 30:
In page 6, line 50, to delete "or" and substitute "and".
This is to ensure that lack of suitable accommodation on its own would not qualify for exemption. It is only where it would be impracticable to provide separate sleeping and sanitary accommodation on a communal basis—this is the matter we discussed earlier for example, on a small trawler or Deputy Dowling's lighthouses—that the exclusion would apply.
I have no objection to this amendment, but I am wondering who will decide the matter. Does the equality agency have to employ a factory inspector, a housing inspector or a welfare officer to inspect the suitability of the premises? While I may say this in a jocose way, I feel concerned about it as well for the reason that I do not want to see the equality agency overloaded and their job becoming difficult or impossible from the beginning. If the workload begins to build up, this legislation will get off to a bad start and the reaction to it from both sides will not be good. As many cases as possible should be channelled away from them. The safeguards should be contained in the Bill so as not to have an overload of work given to the equality agency. Knowing human nature as it is, there possibly will be cases going there which should never go there but which will have to get the same consideration and research as the genuine cases.
Amendment agreed to.
I move amendment No. 31:
In page 6, to delete line 54.
This is to remove exclusion in the scope of a post which is one of two to be held by a married couple.
Is the Minister now not excluding that? Is he deleting it?
Yes.
Is he wise? I have an open mind but I presume he is talking about the odd case. There were quite a number of those posts at one time, for instance golf club managers and their wives.
Yes.
I am not sure how many of them are in the country now. Is it wise to exclude them? Would that create difficulties for a particular group, club or organisation? There would probably have been such appointments on the old estates. There would not have been many in my part of the country. Is the Minister satisfied that he is doing the right thing in deleting it?
Our representations were to the effect that we should.
It is the Minister's decision.
It is not a matter of great moment. We can look at it between now and Report Stage.
Normally that sort of arrangement was entered into only when there was suitable housing accommodation and where the arrangement suited both parties. I am not going to encourage further exclusions, but I suppose there would not be a big number of these situations in the country. I have a very open mind on this. I merely ask: is the Minister happy and convinced that he is right to delete it? If he is, we can discuss it on Report Stage. I do not know what information may be available to the Minister and his Department about how many of these posts there would be.
Amendment agreed to.
I move amendment No. 31a:
In page 6, subsection (2), after line 54, to insert the following paragraph:
"(g) where the nature of employment involves work outside Ireland and in other countries whose laws or customs are such that the job can only be done, or done effectively by a person of one sex."
I have had approaches on this amendment. We have a number of companies going outside the country. I refer specifically to engineering contracts in the Middle East. Our state company, the ESB, are sending a group of people to some of these projects. Very serious difficulties could be encountered if, for example, women are concerned. Possibly it will not mean exclusion but it will mean an equality agency travelling to the Middle East or wherever the problem would be to sort out the sanitary and sleeping arrangements. That safeguard shall be built into the legislation.
It relates to very few but there is certainly a point in the Deputy's suggestion and I will look at it between now and Report Stage.
Is the amendment not agreed?
No, subject to that——
I will agree with the Minister in spirit if he wants to put down his own amendment.
Amendment, by leave, withdrawn.
Question proposed: "That section 14, as amended, stand part of the Bill."
Could I ask the Minister to elaborate on section 14 (2) (b), "where the duties of a post involve personal services"? Paragraph (b) or paragraph (d), one or the other, will be adequate; only one will be necessary and could possibly be amended.
We were thinking more or less of social workers, probation officers and categories of that kind. It has been represented to us that it is important that teams of probation officers and of social workers should be reasonably well balanced since there are circumstances where it is more appropriate to have their services performed by persons of a particular sex.
That is why I asked the Minister to elaborate on it. Maybe it is not possible to do it.
Question put and agreed to.
NEW SECTION.
An Leas-Ceann Comhairle
Amendments Nos. 33 and 35 are consequential on amendment No. 32 and therefore it is agreed to take amendments No. 32, 33 and 35 together.
I move amendment No. 32:
In page 7, before section 15, to insert the following new section:
15. —From the commencement of this section an equal pay officer shall be known (and is in this Act referred to) as an equality officer and, accordingly, all references in the Act of 1974 to an equal pay officer shall be construed as references to an equality officer."
This is in relation to the change of equal pay officers into equality officers because the duties they carry out under the Bill are a little more extensive than those under the Equal Pay Act and therefore it is appropriate that their title should be changed.
I presume equal pay officers were not overworked since their appointment. No reflection on them is intended. It is not their fault and could not be attributed to them. The amendment is understandable in the light of this Bill. Is the Minister saying that there will be new appointments in this situation in addition to the existing officers or is it a question of this Bill now finding employment for these people?
They are very much overworked at present and we will have to look into the question of extra staff being made available.
In the equal pay area.
The equal pay officers have been exceedingly overworked.
It is strange that the provisions of the Bill as we saw them were not implemented. They are not overworked on the kind of work we would like to see them doing. However, the amendment is acceptable.
Amendment agreed to.
SECTION 15.
I move amendment No. 33:
In page 7, lines 5; 8 and 9; and 16 to delate "equal pay officer" and substitute "equality officer".
Amendment agreed to.
I move amendment No. 34:
In page 7, between lines 16 and 17, to insert the following subsection:
"(5) Save only where a reasonable cause can be shown, a reference under this section shall be lodged not later than six months from the date of the first occurrence of the act alleged to constitute the discrimination.".
The purpose of the amendment is to provide a time limit of six months for bringing a case of unlawful discrimination other than retaliatory dismissal. That is the same time as was proposed in this Bill under the Equal Pay Act. At that time that limit was considered a reasonable period in which to bring an action.
I have consistently disagreed with the time limits laid down by the Minister in this. I am a firm believer in fast, snappy settlements to any difficulties that arise. It is fair to both employer and employee because otherwise there is a certain dragging of feet by everybody and that does not help relationships. For that reason I would ask the Minister to reduce to half this term.
I made this plea in many other Bills before the House. I am convinced that a grievance grows with time, and that the six month period is too long. The genuine complaint will be submitted fairly promptly. The length of time given will only help a person who has a weak case. The sufferer in this case will be the equality agency. I do not want this agency to be overburdened with work that will only create a backlog for it which will be harmful to the successful work of this legislation. As I have said, the experience in England with all the tribunals has been that a very high percentage of the cases coming before them were regarded as trivial, and that led to what is known as the £50 settlement. I know that the Minister does not want that situation to arise here. We want to see genuine cases being brought before the agency and dealt with properly. If too many cases come before the agency, their work will become less efficient because of the backlog that will grow. For that reason I would encourage a reduction of that period from six months to three months. There has to be an adequate time but I am satisfied that the genuine cases of discrimination will be lodged promptly and they should be dealt with effectively and quickly by the equality agency.
The six months are necessary. We are all concerned with the efficient functioning of the agency but this Bill exists for the people against whom discrimination is taking place and not for the agency. Deputy Fitzgerald made the case that small employers may not be aware of this legislation or of their rights. We must make them aware of their rights. That is even more the case in relation to many of the people who will be the subject of claims under this Bill. The question of informing them of their rights and of getting advice and so on will arise. A time lag must be allowed if they are to get justice under this Bill. Cutting six months down to three months will not be of benefit to the people whom we are seeking to help under this Bill. The section makes provision for longer than six months where reasonable cause can be shown for the delay.
The six months is important for many reasons. It is not excessive and at the same time it gives people a chance to find out their rights and to invoke the provisions of the Bill.
I will not make an issue of this, although I am convinced that three months would be far more desirable with special consideration being given to cases with a justified long delay. I have consistently made the point that in legislation where adjudicating committees work the sooner decisions are taken the better. Evidence should be taken at a time when it is fresh in the memory. I am sure we have all experience of even a slight road accident where there are two conflicting stories and where each person involved believes his own story and the story becomes more firmly fixed as time elapses. However, I have no objection.
Amendment agreed to.
I move amendment No. 35:
In page 7, lines 17 and 18, to delete "equal pay officer" and substitute "equality officer".
Amendment agreed to.
Section, as amended, agreed to.
SECTION 16.
I move amendment No. 36:
In page 7, to delete line 26 and substitute the following:
"(a) that discrimination is being generally practised against persons or that a practice referred to in section 3 (2) is being applied or operated,".
Amendment agreed to.
Section, as amended, agreed to.
SECTION 17.
I move amendment No. 37:
In page 7, line 54, to delete "interest" and substitute "interests".
This is purely a drafting amendment suggested by the parliamentary draftsman to delete "interest" and substitute "interests".
Amendment agreed to.
I move amendment No. 37a:
In page 8, subsection (3) (d), line 7, to delete "42" and substitute "28".
We discussed this point during the course of many Bills. It is in relation to cutting the time of the appeal being lodged in the court. The Minister may be reluctant to listen to my plea but I am convinced that no matter to what extent we encourage people to act promptly there will always be those who will be late. Every Deputy must be aware of this. Whether the final date in question be in respect of a third level education grant or anything else, there will always be somebody who will apply after the final date. With these various pieces of legislation the Labour Court will have to contend with a certain amount of extra work in the nature of deliberations, consultations, appeals and so on.
I should have told the Deputy that as amendment No. 46a is related it may be discussed with the amendment before the House.
The Minister has acceded to my suggestions in regard to many aspects of these various pieces of legislation. He has made changes that make it easier for the ordinary person to understand what is involved. In this case I trust he will see his way to reducing from 42 to 28 days the period in which an appeal can be made to the Labour Court. By encouraging prompt action in this way we will be enacting better legislation, legislation that will improve the efficiency of the operation. Nothing could be more harmful in investigations of the sort envisaged under this Bill than prolonged periods of delay. Very often our courts are criticised by reason of the long delays that occur especially in appeal cases. In regard to this Bill we must remember that the person who considers himself to be aggrieved may be a very conscientious person who wishes to have his case heard quickly. Consequently, I recommend acceptance of amendments Nos. 37a and 46a.
I consider 42 days to be the minimum time for an appeal to be made against the recommendation of a pay officer. There is similar provision in the Equal Pay Act. This gives the employee just enough time to cope with any delays in obtaining the necessary information to allow him establish a case of appeal. The period we are providing for is only a fortnight longer than that proposed by the Deputy. I consider that extra fortnight to be necessary to allow for any margin of delays because in this area of industrial relations delays may arise for various reasons.
I agree with the Minister that 42 days should be the minimum period allowed so as to allow for any delays that may occur. I take the Deputy's point regarding efficiency but in order to ensure justice, sufficient time must be allowed for the preparation of a case. If there is pressure on the Labour Court steps can be taken to extend it, possibly with special provision for dealing with claims.
I have made my point.
Amendment agreed to.
Section, as amended, agreed to.
SECTION 18
Question proposed: "That section 18 stand part of the Bill."
This section relates to the Labour Court situation. As I have said, the extra duties being allotted to the Labour Court will create a certain amount of extra work. We must encourage both sides of our industrial society to allow us as few opportunities as possible for these cases to be brought before the agency or, indeed, before the Labour Court. In regard to the Unfair Dismissals Act I said that the ideal would be that there would never be an unfair dismissal but, human nature being what it is, the ideal is never achieved. So far as this legislation is concerned the ideal would be that there would never be a discrimination but again there will always be such cases and these cases will be put through the procedures outlined in the Bill. It will be for the court to determine whether there was discrimination in any case. All we can do here is to discourage the public from bringing trivial cases before the tribunal or before the court because if there were to be a glut of trivial cases, the efficiency of the whole operation would be lessened.
I would recommend to the Minister that his Department should operate a more progressive public relations policy within industry generally. People on both sides should be informed of the details of this legislation through shop stewards, various unions and workers' groups. Very few people will ever read the contents of this Bill unless they have a particular problem. The Minister's Department should make available to the work force a brief synopsis of the Bill's contents so that people will know their entitlements. A synopsis should also be made available to the employers and this would ensure the more efficient working of the legislation and possibly prevent acts of discrimination taking place. It could well be the case that an employer would not be aware of the situation. Let us make every effort to streamline the working of this legislation to ensure that justice is done and that cases of discrimination do not arise. Such a flow of information from the Minister's Department could prevent a large number of such cases which could bog down the equality agency, ruin their efficiency and give this legislation a bad reputation because of the backlog of cases. This applies to other Bills we have been discussing over the last few months.
Question put and agreed to.
SECTION 19.
I move amendment No. 38:
In page 8, between lines 32 and 33, to insert the following subsection:
"(2) The amount of an additional fine imposed under section 21 or 22 shall not in any case exceed 104 weeks' remuneration at the rate the person concerned was receiving at the date of the discrimination or would have received but for the discrimination.".
This will have the effect of fixing a limit of 104 weeks' remuneration and compensation awarded by the courts in cases of retaliatory dismissals, either in the first instance under section 21 or where a Labour Court order had not been carried out under section 22.
This puts a defined period of weeks on the remuneration. This is in line with what we have been discussing and I have no objection.
Amendment agreed to.
Section, as amended, agreed to.
SECTION 20.
I move amendment No. 39:
In page 9, line 10, after "determination" to insert ", but not in any case exceeding 104 weeks' remuneration".
This amendment is related to amendment No. 38 and its purpose is to fix the same limit of compensation where a case, other than retaliatory dismissal, is referred to a court of law where a Labour Court order has not been carried out.
I have no objection.
Amendment agreed to.
I move amendment No. 40:
In page 9, between lines 12 and 13, to insert the following paragraph:
"(c) The payment by a convicted person of a sum awarded under paragraph (a) shall be a good defence to any civil action brought by the plaintiff in respect of remuneration mentioned in that paragraph.".
Acting Chairman
Amendments Nos. 42 and 46 are related.
Each of these amendments provides that the payment of damages or compensation by the convicted person shall be a good defence to any civil action brought by the plaintiff for arreas of remuneration.
Is the Minister saying that the payment by a convicted person of a sum awarded shall be a good defence to any civil action? I am confused. I should like more detail.
It shall be a good defence to any civil action, any additional action, brought by the plaintiff for arrears of remuneration. We have similar provisions under the Equal Pay Act.
I missed that point. That explains it. I have no objection.
Amendment agreed to.
Section, as amended, agreed to.
SECTION 21.
Acting Chairman
Amendments Nos. 41, 44, 45, 49 and 50 are related and the relevant part of amendment No. 72 is consequential.
I move amendment No. 41:
In page 9, to delete lines 30 to 37 and substitute the following:
"(3) (a) On a conviction for an offence under this section, the court may, if it thinks fit and the employee concerned is present or represented and consents—
(i) order the re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal, together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.
(ii) order the re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(iii) impose on the convicted person, in addition to a fine imposed under subsection (1), a fine not exceeding the amount which in the opinion of the court the employee would have received from the employer concerned by way of remuneration if the dismissal had not occurred.".
This is to provide that where cases of retaliatory dismissal are referred to a court of law, either in the first instance or where a Labour Court order has not been carried out, the court may order reinstatement or re-engagement. These amendments clarify that compensation can be awarded instead of reinstatement or re-engagement. Amendments Nos. 49 and 50 provide for similar amendments to section 9 (3) (a), section 10 (1) (d) and section 10 (3) (a) of the Equal Pay Act, which cover redress for retaliatory dismissals on equal pay cases. All these provisions preserve uniformity with the provisions of the legislation on unfair dismissals. Amendment No. 50 includes provision for a limit of 104 weeks' remuneration on compensation which may be awarded under section 10 (1) (d) of the Equal Pay Act. Part of amendment No. 72 which refers to an amendment of the Equal Pay Act, is consequential on these amendments. My intention is that the provisions for reinstatement, reengagement or compensation in this Bill and the Equal Pay Act should be in line with such provisions in the Unfair Dismissals Act, so that uniformity is preserved.
That is accepted. I should like to ask the Minister why he has returned to "re-engagement" rather than "re-instatement".
We left both options in. That was the position we adopted in the Unfair Dismissals Bill.
That is right. The Minister accepted my suggestion that we should have the option of re-instatement or re-engagement. In amendment No. 41 the Minister talks about re-engagement on its own. In amendment No. 50 he talks about re-engagement.
The same procedure is adopted here as in the other Bills we discussed. In other words, I have adopted the same procedure as we decided to adopt after the discussion on the other Bills.
So the option is there between reinstatement, or re-engagement, or compensation, as the case may be. It is difficult to see it when we are dealing with so many amendments at the same time.
The Deputy can accept my word for it that it is the same.
The same as we finally agreed about on the Unfair Dismissals Bill.
Amendment agreed to.
Acting Chairman
Attention is directed to a typographical error in the list of additional and substitute amendments. The words "An tAire Saothair" appear in the middle of amendment No. 50 on page 4.
I move amendment No. 42:
In page 9, between lines 47 and 48, to insert the following paragraph:
"(d) The payment by a convicted person of a fine imposed under paragraph (a) shall be a good defence to any civil action brought by the employee concerned in respect of the remuneration mentioned in that paragraph.".
Amendment agreed to.
I move amendment No. 43:
In page 9, to delete lines 48 to 55.
Amendment agreed to.
Section, as amended, agreed to.
SECTION 22.
I move amendment No. 44:
In page 10, to delete lines 15 to 21, and substitute the following:
"(d) if after such investigation the Court is satisfied that the complaint is well founded, the Court may—
(i) order the re-instatement by the employer concerned of the dismissed person in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal, together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.
(ii) order the re-engagement by the employer concerned of the dismissed person either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(iii) by order direct the employer concerned to pay to the dismissed person such compensation as the Court considers reasonable in the circumstances, but not in any case more than 104 weeks' remuneration.".
Amendment agreed to.
I move amendment No. 45:
In page 10, to delete lines 34 to 41, and substitute the following:
"(3) (a) On a conviction for an offence under this section, the court may, if it thinks fit and the dismissed person is present or represented and consents—
(i) order the re-instatement by the employer of the dismissed person in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal, together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal,
(ii) order the re-engagement by the employer of the dismissed person either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(iii) impose on the convicted person, in addition to a fine imposed under subsection (2), a fine not exceeding the amount which in the opinion of the court the dismissed person would have received from the employer concerned by way of remuneration if the dismissal had not occurred.".
Amendment agreed to.
I move amendment No. 46:
In page 10, between lines 51 and 52, to insert the following paragraph:
"(d) The payment by a convicted person of a fine imposed under paragraph (a) shall be a good defence to any civil action brought by the employee concerned in respect of the remuneration mentioned in that paragraph.".
Amendment agreed to.
Amendment No. 46a not moved.
Question proposed: "That section 22, as amended, stand part of the Bill."
Earlier on Committee Stage under section 3 (4) we agreed that where there is discrimination in regard to a dismissal on grounds of sex or marital status, such a dismissal will have the same remedies as dismissals dealt with here under section 22. Under the existing provisions of the Bill discriminatory dismissals under section 3 (4) would only be entitled to monetary compensation under sections 17 and 20. I intend to ensure by way of amendment on Report Stage that remedies should also include re-engagement or re-instatement.
I agree entirely with that. It is important that we have uniform interpretation of the legislation and uniform remedies as well.
Question put and agreed to.
SECTION 23.
I move amendment No. 47:
In page 11, to delete lines 1 to 6, and substitute the following:
"23.—(1) Where a person (in this section referred to as the employee) proposes to refer under section 15 a dispute to the Court, he may ascertain from the other person concerned the reason for the act believed by the employee to have constituted discrimination and that other person shall state the reason in writing to the employee.".
The purpose of this amendment is to substitute "person" for "employer" to ensure that the section covers not only employers but bodies and that it could also include the IMI and the training authority. The other purpose of the amendment is to provide that the reason for the discriminatory act will have to be given in writing by the employer or the body concerned.
Amendment agreed to.
Question proposed: "That section 23, as amended, stand part of the Bill".
Section 23 (2) provides:
The Minister may by regulations prescribe forms to be used for the purposes of this section and specify time-limits for stating reasons under subsection (1).
What does he mean by specifying time-limits? I am not clear on that.
We talked about time limits in other sections of the Bill, but here we are anxious to ensure the employer will have sufficient time to reply to any forms which may be sent to him.
Question put and agreed to.
NEW SECTIONS.
I move amendment No. 48:
In page 11, before section 24, to insert the following new section:
"24.—Section 1 of the Act of 1974 is hereby amended by the insertion of the following after the definition of `the Court':
`dismissal' shall be taken to include the termination by an employee of her contract of employment with her employer (whether prior notice of the termination was or was not given to the employer) in circumstances in which. because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for her to do so, and `dismissed' shall be construed accordingly;".
Amendment agreed to.
I move amendment No. 49:
In page 11, before section 24, to insert the following new section:
"25.—Section 9 (3) of the Act of 1974 is hereby amended by the substitution of the following paragraph for paragraph (a):
`(a) On a conviction for an offence under this section, the court may, if it thinks fit and the dismissed woman is present or represented and consents
(i) order the re-instatement by the employer of the dismissed woman in the position which she held immediately before her dismissal on the terms and conditions on which she was employed immediately before her dismissal, together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal,
(ii) order the re-engagement by the employer of the dismissed woman either in the position which she held immediately before her dismissal or in a different position which would be reasonably suitable for her on such terms and conditions as are reasonable having regard to all the circumstances, or
(iii) impose on the convicted person, in addition to a fine imposed under subsection (1), a fine not exceeding the amount which in the opinion of the court the dismissed woman would have received from the employer concerned by way of remuneration if the dismissal had not occurred.' ".
Amendment agreed to.
Acting Chairman
Acceptance of this amendment involves the deletion of section 24 of the Bill.
I move amendment No. 50:
In page 11, before section 24, to insert the following new section:
26.—(1) The following are hereby substituted for sections 10 (1) (d), 10 (3) (a) and 10 (4), respectively, of the Act of 1974:
(1) (d) if after such investigation the Court is satisfied that the complaint is well founded, the Court may—
(i) order the re-instatement by the employer of the dismissed woman in the position which she held immediately before her dismissal on the terms and conditions on which she was employed immediately before her dismissal, together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal,
(ii) order the re-engagement by the employer of the dismissed woman either in the position which she held immediately before her dismissal or in a different position which would be reasonably suitable for her on such terms and conditions as are reasonable having regard to all the circumstances, or
(iii) by order direct the employer to pay to the dismissed woman such compensation as the Court consider reasonable in the circumstances, but not in any case more than 104 weeks' remuneration.
—An tAire Saothair.
(3) (a) On a conviction for an offence under this section, the court may, if it thinks fit and the dismissed person is present or represented and consents—
(i) order the re-instatement by the employer of the dismissed woman in the position which she held immediately before her dismissal on the terms and conditions on which she was employed immediately before her dismissal, together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal,
(ii) order the re-engagement by the employer of the dismissed woman either in the position which she did held immediately before her dismissal or in a different position which would be reasonably suitable for her on such terms and conditions as are reasonable having regard to all the circumstances, or
(iii) impose on the convicted person, in addition to a fine imposed under subsection (2), a fine not exceeding the amount which in the opinion of the court the dismissed woman would have received from the employer concerned by way of remuneration if the dismissal had not occurred.
(4) Save only where a reasonable cause can be shown, a complaint under this section shall be lodged not later than six months from the date of dismissal'.".
Amendment agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."
I should like an explanation from the Minister on this section. It refers to the Office Premises Acts, 1958. Subsection (2) provides:
This section shall cease to have effect five years after the making of the first order under section 29 or, where only such order is made, five years after the making of that order.
We have had representations about difficulties which could be faced by certain employers about accommodation which it might be necessary for them to provide when this Bill is enacted. It was pointed out that, by employing women in an establishment where up to then it had not been the custom to employ them, in compliance with this Bill the employer would have to ensure that the sanitary accommodation met the requirements of the Office Premises Act, 1958, and regulations under that Act. That is why we considered giving the employer five years' grace to provide such accommodation as is considered necessary.
The Minister is becoming very liberal in giving five years. I thought I would have to push him on that sort of thing. I would not give five years. I would think it is a bit too long. Is the Minister satisfied a period of five years is really necessary?
It has been represented that it is. I will look at it again between now and Report Stage.
Question put and agreed to.
Section 26 agreed to.
NEW SECTIONS.
I move amendment No. 51:
In page 11, before section 27, to insert the following new section:—
27.—(1) The Government may by order appoint a day to be the establishment day for the purposes of sections 27 to 45.
(2) On the establishment day there shall be established a body to be known as the Employment Equality Agency (in this Act referred to as `the Agency') to perform the functions assigned to it by this Act.
(3) The Schedule to this Act shall apply to the Agency.
Amendment agreed to.
Acting Chairman
Amendments Nos. 52 and 53 are related and may be taken together.
I move amendment No. 52:
In page 11, before section 27, to insert the following new section:
28.—The Agency shall have, in addition to any functions assigned to it by any other provision of this Act, the following general functions—
(a) to work towards the elimination of discrimination in relation to employment,
(b) to promote equality of opportunity between men and women in relation to employment,
(c) to keep under review the working of the Act of 1974 and this Act and, whenever it thinks it necessary, to make proposals to the Minister for amending either or both of those Acts.
Amendments Nos. 52 and 53 prescribe the broad general functions of the agency and the functions assigned to the Minister which the agency will take over when established. Amendment No. 52 concerns the broader functions of the agency, namely, general promotion of equality of opportunity of employment between the sexes. Under amendment No. 53 the role of the Minister is to ensure enforcement of the law in the public interest which normally would involve cases of unlawful discrimination affecting the public generally. This is the purpose of both amendments.
The amendments contain the machinery to empower the agency to encourage proper use of this legislation. By that I mean not bringing cases to be heard but avoiding such cases by having little or no discrimination. Amendment No. 52 refers to the following function:
(a) to work towards the elimination of discrimination in relation to employment,
I consider this a most important function, for more important than adjudicating on or hearing cases. The old motto of prevention being better than cure applies in most walks of life and certainly it applies here. For instance, if a person carries out ordinary maintenance on his car he will have a more efficient piece of machinery. The same principle applies to human and industrial relations. They can be operated far more harmoniously if the right kind of climate is created.
I was amazed that the Minister introduced this Bill without its most important part, namely, the agency. They will now have many new powers. Much of the content of the Bill has been devoted to the procedures regarding investigations, appeals and compensation. I should like to see the agency devoting all their time to the functions set out in amendment No. 52. The contribution of the agency under these headings would be far greater than adjudicating on difficulties although I accept that they will have to do a certain amount of that work.
I commit the support of my party towards assisting the agency in this operation. I have always believed that human and industrial relations can be encouraged. There will be obstacles and setbacks but if there are people in the agency committed to the elimination of discrimination we will have achieved something worth while.
The promotion of equality of opportunity between men and women is a commitment of this party. We have had worth while discussion on parts of this Bill and many improvements have been carried out. Nevertheless more improvements can be effected and I hope the Minister will accede to the many points we have made on Committee Stage.
Amendment No. 52 further states:
(c) to keep under review the working of the Act of 1974 and this Act and, whenever it thinks it necessary, to make proposals to the Minister for amending either or both of these Acts.
I presume the Minister is assigning to the agency the function of reviewing the working of the 1974 Act and I have no doubt they will report to the Minister consistent with the points I have been making.
I wish to commend the Minister on broadening the scope of the functions of the agency to include the three provisions set out in amendment No. 52. I envisage the agency as being in a position to highlight discrimination and to inform the people likely to be the victims of such discrimination of their rights under this legislation and the various measures dealing with equipment. I am sure the agency will pinpoint the factors contributing to discrimination. They could go back to education, to a period long before the people concerned reach the age where employment is a factor in their lives. The amendment also provides that the agency will keep under review the working of the 1974 Act and this legislation and make submissions to the Minister. The agency will be well equipped to do that. It is wise to give them the opportunity of making known their views to the Minister regarding any improvements that might be made. This is a step in the right direction and it will give the agency a role in policy-making in the future.
Amendment agreed to.
I move amendment No. 53:
In page 11, before section 27, to insert the following new section:
29.—(1) On the establishment day the functions conferred on the Minister by sections 16, 17 (1) and 26 and by section 7 (2) of the Act of 1974 shall, by virtue of this section, stand transferred to the Agency.
(2) On and from the establishment day the references to the Minister in sections 15 (4) (b), 17 (2) (b), 17 (4) and 20 (1), and in sections 7 (4) and 8 (1) (b) of the Act of 1974, shall be construed as references to the Agency.
Amendment agreed to.
I move amendment No. 54:
In page 11, before section 27, to insert the following new section:
"30.—(1) The Agency may undertake or sponsor such research and undertake or sponsor such activities relating to the dissemination of information as it considers necessary and which appears expedient for the purpose of exercising any of its functions.
(2) Without prejudice to the generality of subsection (1), the Agency may draft and publish for the information of employers guidelines or codes of practice relating to discrimination in relation to employment.
(3) The Agency may make charges for any services provided by it under this section".
This amendment enables the agency to sponsor research or such activities relating to the dissemination of information aimed at eliminating discrimination. A programme of education will have to be undertaken about discrimination in employment intended to change public attitudes and banish as much prejudice as possible. It is envisaged that the agency will be a principal source of information and advice for the general public about this Bill and the Act relating to anti-discrimination. Information activities would include producing guidelines, codes of good practice for the information of employers and explanatory leaflets for both employers and employees. This is the central purpose of the agency in their public enlightenment role.
I will not oppose this amendment. The Minister told us what will be the main functions of the agency. Let us hope that is so. This is my wish, too, but my fear is that too much of the agency's time may be spent in determining and investigating disputes. That would be a tragedy because if the agency worked in the direction that is intended, they would achieve far more for the benefit of the community at large.
I am very concerned about subsection (3) of this new section. I notice the Minister shied away from this when he spoke on this section, which says that the agency may make charges for any services provided by them under this section. What is envisaged here? What kind of charges has the Minister in mind? For what services would the charges be made? Who would determine the value of those services and the extent of the charges? I do not take from the agency the right to charge in those circumstances, but one must ask for more details about what is intended here.
We are talking about research and information activities. It is desirable that these services be carried out by the agency, but what are they charging and whom? What services will they provide? Is there any danger that they will be charging for investigating disputes or for advising people on how to avoid discriminatory practices? I believe this agency are providing a service to the State, the individual, the community and the employment scene. I am very concerned to know what charges the Minister has in mind. Is this a new departure? Has he been encouraged by his colleague, the Minister for Finance, who seems to be always short of money, to get more money to pay for these tribunals? A more detailed explanation is expected from the Minister on that paragraph.
The agency would be entitled to charge for any literature they produced.
It is right that they should charge, but then there is the danger that the people who should purchase this material may not do so. The cost of one hearing would far exceed the printing costs of any literature that may have been involved. The overall cost to the State, the employer, the employee and the productivity lost by both sides would more than compensate for the cost of printing and publicity. I would be afraid of that section.
There is nothing to be worried about here. This is merely an enabling section. If the agency get involved in heavy printing costs on certain research in which there would be a great deal of public interest, we are providing that they may charge for these publications.
Would it not be more advisable that any such publications would be published through Government publications?
But the charge is there.
I agree but the Minister spoke of publications of some sort and there might be certain types of publications they could charge for——
The agency may publish particular reports.
I do not see that a charge would be justified for the type of report I would expect from them.
I take it that the agency are being set up for the protection of both employers and the employees. In subsection (2) would the Minister consider including "the agency may draft and publish for the information of both employers and employees"?
We have guidelines and codes of practice relating to discrimination. This would be for the guidance of employers, to explain exactly what is involved in this legislation. Booklets will also be published about the provisions of this Bill for the information of employees. If we did not ensure that employers had literature to tell them exactly what they were required to do under law, they could make the point that they were not notified. It is part of the job of the agency to ensure that employers knowing their obligations under this legislation, will abide by them, and that we will have less friction and difficulties because of this knowledge. That is why the agency refer to employers in this section.
Is it not also the job of the employment agency to ensure that employees are aware of what actually constitutes discrimination under the terms of the Bill?
Yes, one of the prime requirements of the agency would be that all the positive features of the Bill are made known to the employers and employees. We thought it necessary that employers should be specifically told their obligations. If they were unaware of the provisions of the Bill they are the people initially, who would stand to be in the greatest difficulty because there are penalties if they do not comply with its provisions. We think it important that they should know these requirements right away.
Is that not desirable for both sides?
We assume that the agency will draft full information for employees. We will have a look at this between now and Report Stage.
Amendment agreed to.
I move amendment No. 55:
In page 11, before section 27, to insert the following new section:—
"31.—(1) Where in the opinion of the Agency the working or effect of any Act to which section 12 applies, any provision of such an Act or any statutory instrument made under such an Act is likely to affect or impede the elimination of discrimination in relation to employment or the promotion of equality of opportunity between men and women in relation to employment, the Agency may if it thinks fit, and shall if required by the Minister, carry out a review of such an Act, provision or instrument or of its working or effect.
(2) For the purpose of assisting it in making a review under this section, the Agency shall consult such trade unions, employers' organisations and organisations of trade unions or of employers' organisations as it considers appropriate.
(3) (a) Where the Agency makes a review under this section it may make to the Minister a report of the review, and shall do so where the review was required by the Minister.
(b) A report under this subsection may contain recommendations for amending any statute, statutory instrument or administrative provision so reviewed.".
This empowers the agency to carry out a review of any laws, regulations or provisions which require men and women workers to be treated differently and thus give rise to discrimination in their employment.
And report back to the Minister?
Yes, and make recommendations perhaps. The Deputy referred earlier to protective legislation and this is one area we would look at.
Amendment agreed to.
Amendments Nos. 56 to 60, inclusive, were dealt with in conjunction with amendment No. 4. Amendments Nos. 61 to 64, inclusive, were dealt with in conjunction with amendment No. 6.
I move amendment No. 56:
In page 11, before section 27, to insert the following new section:
"32.—(1) The Agency may, for any purpose connected with the performance of its functions, conduct an investigation and shall do so where required by the Minister.
(2) For the purpose of assisting it in the conduct of a particular investigation the Agency may, with the approval of the Minister, employ one or more than one person having qualifications which in the opinion of the Agency relate to that investigation.
(3) An investigation may be conducted by one or more than one member of the Agency delegated by the Agency for this purpose.
(4) An investigation shall not be conducted in relation to the selection by the Local Appointments Commission or the Civil Service Commission of a person for appointment to an office or position.".
Amendment agreed to.
I move amendment No. 57:
In page 11, before section 27, to insert the following new section:
"33.—The Agency shall not conduct an investigation until the following requirements have been complied with:
(a) terms of reference for the investigation shall be drawn up by the Agency or, if the investigation is one which the Minister has required the Agency to conduct, by the Minister after consultation with the Agency;
(b) notice of intention to conduct an investigation shall be given by the Agency by a notice published in at least one daily newspaper circulating in the State unless the terms of reference refer to a specified person in which case the notice shall be given in writing to that person.".
Amendment agreed to.
I move amendment No. 58:
In page 11, before section 27, to insert the following new section:
"34.—(1) The Agency may for the purposes of an investigation do all or any of the following things—
(a) require any person, by notice delivered to him personally or by registered post, to supply to it such information as it specifies in the notice and requires for the purpose of the investigation,
(b) require any person, by notice delivered to him personally or by registered post, to produce to it or to send to it, any specified document in his power or control,
(c) summon witnesses, by notices delivered to them personally or by registered post, to attend before it,
(d) examine the witnesses attending before it.
(2) A notice under subsection (1) shall not be delivered unless the Agency has obtained the consent of the Minister to the delivery, or unless the terms of reference for the investigation specify that the Agency believes that a person named in the terms of reference—
(a) has discriminated or is discriminating,
(b) has failed or is failing to comply with an equality clause under section 4,
(c) has contravened section 7 (1) or section 8,
(d) has engaged in or is engaging in a practice referred to in section 3 (2), or
(e) has failed or is failing to comply with an equal pay clause (within the meaning of section 7 of the Act of 1974).
(3) A witness before the Agency and a person sending a document to the Agency or supplying information to it shall be entitled to the same immunities and privileges as if he were a witness before the High Court.
(4) A notice under subsection (1) shall be signed by at least one member of the Agency.
(5) The Agency may make, to a person who attends before it as a witness, such payments in respect of subsistence and travelling expenses as may be determined by the Minister with the consent of the Minister for the Public Service.".
Amendment agreed to.
I move amendment No. 59:
In page 11, before section 27, to insert the following new section:
"35.—(1) If a person—
(a) fails or refuses to supply to the Agency information required by it and specified in a notice under section 34 (1) or to produce or send to the Agency any document in his power or control and required by the Agency in such a notice to be produced by him,
(b) on being duly summoned as a witness before the Agency fails or refuses to attend.
(c) being in attendance as a witness before the Agency refuses to take an oath or to make an affirmation when legally required by the Agency to do so or to answer any question to which the Agency may legally require an answer, or
(d) does anything which would, if the Agency were a court of justice having power to commit for contempt of court, be contempt of such court,
he shall be guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding £100 or, on conviction on indictment, to a fine not exceeding £1,000, and where the offence is one referred to in paragraphs (a) to (c) of this subsection the court by which he is so convicted may direct him to comply with the paragraph in question.
(2) If a person to whom a notice under section 34 (1) has been delivered alters, suppresses, conceals or destroys a document specified in the notice or makes a false statement when supplying to the Agency information specified in the notice, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100.".
Amendment agreed to.
I move amendment No. 60:
In page 11, before section 27, to insert the following new section:
"36.—(1) After it has concluded an investigation or in the course of an investigation the Agency may make to any person (including the Minister) recommendations arising out of the investigation for the purpose of promoting one or both of its general functions specified in sections 28 (a) and 28 (b).
(2) As soon as practicable after it has conducted an investigation the Agency shall prepare or cause to be prepared a report of the investigation, and such a report shall contain any findings of the Agency arising out of the investigation.
(3) Where the investigation was one required by the Minister a copy of the relevant report under this section shall be sent to the Minister as soon as practicable after its preparation.
(4) The Agency or (in the case of a report referred to in subsection (3) the Minister shall, as soon as practicable after subsection (2) and (where appropriate) subsection (3) have been complied with cause a report under this section to be published or otherwise made available to the public and shall give notice to the public of such publication or availability.
(5) Any information obtained by the Agency by virtue of the powers conferred on it by section 34 as to any organisation of workers or any person or as to the business carried on by any person, which is not available otherwise, shall not be included in a report under this section without the consent of the organisation of workers or the person concerned (unless such non-inclusion would be inconsistent with the duties of the Agency and the object of the report), and any person concerned in any proceedings under this Act shall not disclose any such information without such consent.".
Amendment agreed to.
I move amendment No. 61:
In page 11, before section 27, to insert the following new section:—
37.—(1) Where in the course of the conduct of an investigation or after an investigation has been conducted the Agency is satisfied that a person—
(a) has discriminated or is discriminating,
(b) has failed or is failing to comply with an equality clause under section 4,
(c) has contravened section 7 (1) or section 8,
(d) has engaged in or is engaging in a practice referred to in section 3 (2), or
(e) has failed or is failing to comply with an equal pay clause (within the meaning of section 7 of the Act of 1974),
it may serve a non-discrimination notice on that person.
(2) (a) Where the Agency proposes to serve a non-discrimination notice it shall before serving it notify in writing the person on whom it is proposed to serve the notice of its proposal.
(b) A notification under this subsection shall specify the act or omission constituting the discrimination, failure, contravention or practice and shall inform the person concerned that he may make representations to the Agency regarding the proposal within a period specified in the notification.
(c) A person who has received a notification under this subsection may make representations to the Agency regarding the proposed non-discrimination notice within 28 days of receipt of the notification.
(d) Where representations are duly made under this subsection they shall be considered by the Agency before serving a non-discrimination notice.
(3) A non-discrimination notice shall—
(a) specify the act or omission constituting the discrimination, failure, contravention or practice,
(b) require the person on whom it is served not to commit the discrimination or contravention or (where appropriate) to comply with the equal pay clause (within the meaning of section 7 of the Act of 1974) or the equality clause under section 4,
(c) specify, in the case of a discrimination, what steps the Agency requires to be taken by the person on whom it is served in order not to commit the discrimination, and
(d) require the person on whom it is served to inform the Agency, within a period specified in the notice, and any other persons so specified of what steps are taken in order to comply with the notice and to supply, within a period so specified, the Agency with any other information so specified.
(4) A non-discrimination notice may be served by personal delivery or by registered post.".
Amendment agreed to.
I move amendment No. 62:
In page 11, before section 27, to insert the following new section:
38.—(1) A person on whom a non-discrimination notice has been served may appeal to the Court within 42 days of the date of service against the notice or any requirement of the notice.
(2) Where an appeal under subsection (1) is not made, a non-discrimination notice shall come into operation on the expiry of the 42-day period referred to in that subsection.
(3) Where the Court has heard an appeal under subsection (1), it may either confirm the notice in whole or in part (with or without an amendment of the notice) or allow the appeal.
(4) Where the Court confirms a non-discrimination notice, the notice (as so confirmed in whole or in part) shall come into operation on such date as the Court shall fix.
(5) Where the Court allows an appeal under subsection (1), the non-discrimination notice appealed against shall cease to have effect.".
Amendment agreed to.
I move amendment No. 63:
In page 11, before section 27, to insert the following new section:—
"39.—The Agency shall keep a register, which shall be open to inspection by any person at all reasonable times, of every non-discrimination notice which has come into operation.".
Amendment agreed to.
I move amendment No. 64:
In page 11, before section 27, to insert the following new section:
"40.—(1) In a case to which this section applies it shall be lawful for the High Court to grant an injunction, on the motion of the Agency, to prevent discrimination by a person specified in the order of the High Court of a type so specified.
(2) This section applies to a case where, in the period of five years beginning on the date on which a non-discrimination notice came into operation, the Agency satisfies the High Court that there is a likelihood of further discrimination or of a further contravention or failure referred to in section 37 (1) by the person on whom the notice was served.".
Amendment agreed to.
I move amendment No. 65:
In page 11, before section 27, to insert the following new section:—
"41.—(1) A person who considers that there is or has been discrimination in respect of him by another person, or that there is or has been a failure or neglect by such other person to comply with an equal pay clause (within the meaning of section 7 of the Act of 1974) or with an equality clause under section 4 or to implement a determination or order of the Court under section 17 or 22 or under section 8 or 10 of the Act of 1974, may apply to the Agency for assistance in making a reference to the Court or an equality officer.
(2) Where, having considered an application under subsection (1), the Agency is satisfied that the application raises an important matter of principle, or it appears to the Agency that it is not reasonable to expect the applicant adequately to present without assistance the case the subject of the proposed reference, the Agency may at its discretion provide assistance to the applicant in making the reference.
(3) Assistance under this section shall be in such form as the Agency at its discretion thinks fit.".
This amendment provides for the agency to assist the individual who considers that he has been discriminated against in referring a disputed case to the Labour Court or to an equal pay officer of the court under the Equal Pay Act. However, the agency may assist an individual only specifically where the case raises a question of principle, where it is unreasonable, having regard to the complexity of the case or of the position of the individual vis-á-vis the other party, to expect the individual to deal with the case unaided or where some other special consideration applies—for example, because of retaliation—in particular where such individuals are unorganised, not in trade unions or already in secure employment.
I have no objection to this amendment. The functions are being dished out so liberally to the agency I hope they get around to performing them all. That would be my greatest concern. I consider the establishment of an agency the focal point or most important aspect of a Bill such as this and that without it the Bill would be worthless. I should like to make sure that the agency would not be completely bogged down with an overload of work. The functions mentioned here are very desirable. However, I believe the Minister has a duty to examine carefully and monitor the operation of this system at the commencement lest, because of a work load or too many cases coming before it, the agency would not be able to devote sufficient time to functions that I believe are more important in the long term.
We must appreciate also that in relation to this Bill probably it will take some time to get the machinery oiled. The establishment of the agency is fairly urgent. I hope the Minister will give consideration to the appointment of people suitably qualified, that the policy operated by his colleagues in office, and by himself also on occasion, will not be the guiding instrument by which appointments will be made to this very important agency that will have, among other functions, those allocated to it under this amendment. From the beginning the important thing is that the agency be given an opportunity of establishing their priorities. The priorities I would envisage for them would certainly not be in the field of too many adjudications. The fewer of those they have the better for the agency and for the future of this legislation.
Amendment agreed to.
I move amendment No. 66:
In page 11, before section 27, to insert the following new section:—
"42.—(1) The Agency shall, in such form as may be approved by the Minister with the concurrence of the Minister for Finance, keep all proper and usual accounts of all moneys received or expended by it.
(2) Accounts kept in pursuance of this section shall be submitted annually by the Agency to the Comptroller and Auditor General for audit at such times as the Minister, with the concurrence of the Minister for Finance, directs and those accounts, when so audited, shall (together with the report of the Comptroller and Auditor General thereon), be presented to the Minister, who shall cause copies of the audited accounts and the report to be laid before each House of the Oireachtas.".
This amendment is self-explanatory. It merely requires the agency to keep an account of moneys expended by them in a form approved by the Minister, in agreement with the Minister for Finance, such accounts to be submitted annually to the Comptroller and Auditor General.
Amendment agreed to.
I move amendment No. 67:
In page 11, before section 27, to insert the following new section:
"43.—(1) The Agency shall in each year, at such date as the Minister may direct, make a report to the Minister of its activities during the preceding twelve months ending on that date, and the Minister shall cause copies of the report to be laid before each House of the Oireachtas.
(2) The Agency shall supply to the Minister any information as he may from time to time require regarding its activities.".
This imposes the obligation to produce an annual report of the agency's activities during the previous 12 months and that copies of the report be laid before the Houses of the Oireachtas.
Amendment agreed to.
I move amendment No. 68:
In page 11, before section 27, to insert the following new section:
"44.—(1) In each financial year there may be paid to the Agency out of moneys provided by the Oireachtas a grant of such amount as the Minister, with the concurrence of the Minister for Finance, may sanction towards the expenses of the Agency in the performance of its functions.
(2) The Agency may invest money in such manner as the Minister may approve".
These are standard provisions in Bills of this kind. They are purely routine in terms of agencies or bodies of this kind being set up.
Is the term "grant" a standard one?
Yes.
Amendment agreed to.
I move amendment No. 69:
In page 11, before section 27, to insert the following new section:
"45.—The Agency may, with the consent of the Minister, given with the concurrence of the Minister for Finance, borrow temporarily by arrangement with bankers such sums as it may require for the purpose of providing for current expenditure."
The same point applies here, the borrowing power of the agency, a standard provision.
In those circumstances I wonder who determines or controls the borrowing arrangements the agency make, is it the Minister for Labour or the Minister for Finance?
I am sorry I did not hear what the Deputy said.
I was asking the Minister, in such cases of borrowing, is it controlled by the Minister for Labour or by the Minister for Finance?
The Deputy can take it that it would be the Minister for Finance.
In respect of the powers of borrowing, the amount borrowed and so on?
Absolutely, yes.
Amendment agreed to.
Question proposed: "That section 27, as amended, stand part of the Bill."
I should mention in relation to this section that on Report Stage I will have to consider the exclusion for a limited period of panels already in being from the scope of the Bill. Already competitions have been held and successful candidates placed on a panel. If the Bill comes into operation quickly before a new competition is announced, they would have to withdraw from the existing panel. It is to enable them to do this that it may be necessary to give exclusion for a limited period. I may have to do something on Report Stage to that effect. As we saw earlier, all appointments to the public service will come within the scope of this legislation. But there are already panels of successful candidates drawn up. If this Bill becomes law, next month we would be forced to re-examine the whole position. That would be unfair to the candidates.
It would mean interfering with the existing panel of candidates?
Yes.
And put them out of place?
Yes.
That is understandable.
Question put and agreed to.
Section 28 agreed to.
SECTION 29.
Amendment No. 70 has been dealt with already in conjunction with amendment No. 1.
I move amendment No. 70:
In page 11, line 40, after "this Act" to insert "(other than sections 27 to 45)".
Amendment agreed to.
Section, as amended, agreed to.
SECTION 30.
I move amendment No. 70a:
In page 12, lines 4 and 5, to delete "Anti-Discrimination (Employment) Act, 1975" and substitute "Equal Opportunities (Employment) Act, 1977".
This is consistent with some amendments put down to earlier Bills and accepted by the Minister in the case of the Unfair Dismissals Bill. I have been for long critical of the term "anti-discrimination" being applied to any of this legislation. I have never believed in the word "anti". It always struck me as a sort of opposition to something rather than taking a more positive, progressive approach. I have no doubt that the Minister set out in his early days in Government with the intention of boosting his party or Government's image. Four years later, we see the disastrous effects. At that time he was pointing out all he would do, all the discrimination he would eliminate in the social field. Now that the performance has levelled out, there is no point in continuing this. For that reason I have moved an alternative Title, Equal Opportunities (Employment) Bill, 1977. The date on the Title at the moment is 1975. It was introduced then but it was not touched until 1976. In section 30 the Bill states:
(1) This Act may be cited as the Anti-Discrimination (Employment) Act, 1975.
In years to come when history is being written it will be known it was not a 1975 Act and it might be embarrassing for the Minister to see that date and realise it did not become law until a few days before the election in 1977.
I will not quarrel over Titles and although I might not agree that "anti-discrimination" would be irrelevant in the case of pay it could be reviewed in regard to this Bill. Therefore, I propose on Report Stage to suggest that the Bill be entitled the Employment Equality Act. This goes along the lines suggested by the Deputy.
It is along the lines I have been anxious to achieve.
Amendment, by leave, withdrawn.
Section agreed to.
SCHEDULE
I move amendment No. 71.
In page 12, after line 8, to insert the following Schedule:—
"SCHEDULE
Employment Equality Agency
1. The Agency shall be a body corporate with perpetual succession and the power to sue and be sued in its corporate name and to acquire, hold and dispose of land.
2. The Agency shall consist of a chairman (in this Schedule referred to as `the chairman') and ten ordinary members.
3. The chairman may at any time resign his office by letter addressed to the Minister and his resignation shall take effect as on and from the date of receipt of the letter by the Minister.
4. The Minister may at any time remove the chairman from office.
5. Where the chairman or an ordinary member of the Agency becomes a member of either House of the Oireachtas, he shall, upon his becoming entitled under the Standing Orders of the House to sit therein, cease to be the chairman or such ordinary member.
6. A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein shall be disqualified from being either the chairman or an ordinary member of the Agency.
7. The chairman shall be appointed by the Minister either in a wholetime or a part-time capacity and shall hold office for not more than five years on such terms and conditions as the Minister determines with the consent of the Minister for the Public Service.
8. The chairman shall be paid, out of moneys provided by the Oireachtas, such remuneration and allowances and expenses incurred by him as the Minister, with the consent of the Minister for the Public Service, may determine.
9. Of the ordinary members of the Agency—
(a) two shall be workers' members;
(b) two others shall be employers' members, and
(c) the remaining six, three of whom shall be representative of women's organisations, shall be nominated by the Minister.
10. Each ordinary member of the Agency shall be a part-time member and, subject to this Schedule, shall hold office for five years on such terms and conditions as the Minister determines with the consent of the Minister for the Public Service.
11. The chairman and an ordinary member of the Agency whose term of office expires by effluxion of time shall be eligible for reappointment.
12. The Minister may at any time remove an ordinary member of the Agency from office.
13. An ordinary member of the Agency may resign his office as such member by letter addressed to the Minister and the resignation shall take effect as on and from the date of the receipt of the letter by the Minister.
14. A member of the Agency shall be disqualified from holding and shall cease to hold office if he is adjudged bankrupt or makes a composition or arrangement with creditors or is sentenced by a court of competent jurisdiction to suffer imprisonment or penal servitude or ceases to be ordinarily resident in the State.
15. Each ordinary member of the Agency shall be paid, out of moneys provided by the Oireachtas, such expenses as the Minister with the consent of the Minister for the Public Service, may sanction.
16. The Minister shall appoint one of the ordinary members of the Agency to be vice-chairman of the Agency with the function of acting as chairman in the absence of the chairman.
17. Where a casual vacancy occurs among the workers' members, the employers' members or the women's organisations' members of the Agency, the Minister shall fortwith invite the organisation which previously nominated that member to nominate a person for appointment to fill the vacancy and the Minister shall appoint the person nominated to fill the vacancy.
18. (1) The Minister, with the consent of the Minister for the Public Service, may appoint such officers and servants as he thinks necessary to assist the Agency in the performance of its functions.
(2) The officers and servants so appointed shall hold office on such terms, and receive such remuneration, as the Minister for the Public Service determines.
19. (1) The Agency shall hold such and so many meetings as may be necessary for the performance of its functions and may make arrangements for the regulation of its proceedings and business.
(2) Such arrangements may, with the approval of the Minister, provide for the discharge, under the general direction of the Agency, of any of its functions by a committee of the Agency.
20. The Minister may fix or sanction the date, time and place of the first meeting of the Agency.
21. The quorum for a meeting of the Agency shall be five members.
22. At a meeting of the Agency—
(a) the chairman shall, if present, be the chairman of the meeting;
(b) in the absence of the chairman or, if the office of chairman of the Agency is vacant, the vice-chairman of the Agency shall act as chairman,
(c) if, and so long as, the chairman is not present, or if the office of chairman of the Agency is vacant and the vice-chairman is not present or the office of vice-chairman is vacant, the members of the Agency present shall choose one of their number to be chairman of the meeting.
23. The chairman and each ordinary member of the Agency attending a meeting of the Agency shall have one vote.
24. Every question at a meeting of the Agency shall be determined by a majority of the votes cast on the question and, in the case of an equal division of votes, the chairman of the meeting shall have a second or casting vote.
25. The Agency may act notwithstanding one or more than one vacancy among its members.
26. Subject to this Schedule, the Agency shall regulate its procedure and business.
27. (1) The Agency shall, as soon as may be after its establishment, provide itself with a seal.
(2) The seal of the Agency shall be authenticated by the signature of the chairman or some other member of the Agency authorised by it to act in that behalf and by the signature of an officer of the Agency authorised by it to act in that behalf.
(3) Judicial notice shall be taken of the seal of the Agency and any document sealed with the seal shall be received in evidence."
Amendment agreed to.
Amendments Nos. 1, 2 and 3 to amendment No. 71 not moved.
TITLE
I move amendment No. 72:
In page 2, line 7, to delete "MARRIAGE" and substitute "MARITAL STATUS" and before "AND" to insert "TO ESTABLISH A BODY TO BE KNOWN AS THE EMPLOYMENT EQUALITY AGENCY, TO AMEND THE ANTI-DISCRIMINATION (PAY) ACT, 1974", and in line 9 to delete "MATTER" and substitute "MATTERS".
Amendment agreed to.
Pursuant to Standing Order 95 (3), I have to report specially to the Dáil that the Committee have amended the Title to read as follows:
An Act to make unlawful in relation to employment certain kinds of discrimination on grounds of sex or marital status, to establish a body to be known as the Employment Equality Agency, to amend the Anti-Discrimination (Pay) Act, 1974 and to provide for other matters related to the aforesaid matters.
Title, as amended, agreed to.
Bill reported with amendments.
Report Stage ordered for Tuesday, 10th May, 1977, subject to agreement between the Whips.