Equality Bill 2004 [Seanad]: Report and Final Stages.

Amendment No. 1 has been ruled out of order.

Amendment No. 1 not moved.

I move amendment No. 2:

In page 6, lines 43 and 44, to delete all words from and including ", but" in line 43 down to and including "employed" in line 44 and in page 7, lines 1 to 4, to delete all words from and including "in" in line 1 down to and including "persons" in line 4.

This amendment was moved on Committee Stage. It refers to those whom persons can employ. It revolves around the tricky question of who one can employ in one's home. The Minister of State will disagree but the legislation places restrictions on those who can be employed in the home. As we all know, the greatest abuse of employees probably involves domestic servants and those working in family homes, such as au pairs and foreign nationals. We need to ensure, in as far as possible, that no restrictions apply to such employees and they are not excluded from terms of employment. I hope the Minister of State will accept the amendment, even at this late stage.

As Deputy Paul McGrath stated, this is a simple but important amendment to section 3 which amends section 2 of the Employment Equality Act. It is intended to ensure that employers cannot discriminate against domestic workers. Despite the changes made in the Seanad, the Government provision amending section 2 of the Employment Equality Act still includes a blanket provision enabling employers to discriminate against prospective employees applying for work in a person's home for the provision of personal services.

In practice, this change will enable employers to reject job applicants because of their personal prejudices, which is not acceptable. Exemptions must be justified as rationally connected to the work or the service and be reasonably necessary. Respect for private and family life is not a justification for a blanket ban measure to enable this category of employers to engage in discriminatory practices. The Minister has pointed out in other contexts that he needs to plug legislative loopholes. In the case of our equality laws, an increasing number of loopholes are emerging. This legislation, if passed, will allow people to discriminate legally.

No exemptions similar to those the Minister proposes in the text of the Bill appear in the directives to which we are trying to give effect in law, and no precedent in this area of jurisprudence has been set by the European Court of Justice or the European Court of Human Rights. The Human Rights Commission made a point on this aspect of the legislation stating:

Clause 3 of the Bill proposes to amend the existing exemption of domestic employment from the application of the Employment Equality Act 1998 by excluding from the protections under the recruitment of "persons employed in another person's home for the provision of personal services for persons residing in that home where the services affect the private or personal life of those persons". However the Bill does now provide for protection for domestic workers against discrimination within employment.

Neither the Race Directive nor the Framework Employment Directive permits exemptions to the application of the binding elements of the Directives in relation to employment in a private household. [The proposal is, therefore, in breach of the directives] The references in the non-binding recitals to the Directives to respect for private and family life relate only to the provision of goods and services and not to the area of employment. In other words, while limited exemptions may be justified in the provision of goods and services, it is explicit that no exemptions are countenanced with regard to employment.

I urge the Minister of State to adopt the amendment to bring the legislation into line with the directives we are trying to transpose.

I reject the notion that the Bill in any way breaches the directives. All three directives recognise that there may be difference in treatment based on a genuine occupational requirement, which is precisely what we are dealing with here. The 1998 legislation provided for difference in treatment with regard to employment in the home. There are a number of significant differences in the proposed legislation. This Bill considerably narrows the exclusion and, as a result of an amendment I accepted in the Seanad, the provision covers access to employment only.

Representations have been made that people employed as domestics, particularly people from abroad, are treated appallingly in some private households. That is not permissible under the legislation as the exclusion relates only to access to employment.

Nobody could logically argue that in terms of providing services of a personal nature, as are clearly and widely defined in the legislation, we should introduce legislation effectively to compel people to act against what everybody knows to be their best interests. Let us take the example of an elderly woman seeking to employ somebody for personal services, including health care. If, for obvious reasons, she wanted to employ a female but was compelled by law to give equal consideration to a male to do the job or allow any male who wanted to apply for the job to take a case for discrimination against the potential employer, I would become the most ridiculous figure in politics.

Following the results of the recent local and European elections, many independent commentators opined that one of the problems was a view that individual Ministers were interfering too much in personal lives, for example, by introducing a smoking ban, a penalty points system and an obligation to carry a driver's licence. If I were to introduce legislation which impinges on the family home and forces an elderly woman in the circumstances described to give equal consideration to a male, thus allowing any male to bring a successful action against her on the basis that she discriminated against him, I can imagine what view the media would take when the matter came to a head. We would be laughed off the stage.

The amendment proposes the deletion from the definition of "employee" for the purposes of the Act of 1998 of the exclusion in respect of persons employed in another person's home to provide personal services to persons living in that home where they affect private or family life. The term "personal services" is defined in the Bill in the following terms:

‘personal services', in relation to such services provided in a person's home, includes but is not limited to services that are in the nature of servicesin loco parentis or involve caring for those residing in the home.

This exclusion replaces much more broadly-based exclusions in the Employment Equality Act and strikes a balance between the equal rights of persons to private and family life and the equal treatment of employees. On Committee Stage in the Seanad, I introduced an amendment to the provision, which further qualified the exclusion to clarify, in case anybody was in doubt, that it applies only in so far as access to employment is concerned. This exclusion, as amended, is very narrow and clearly meets the rigorous standards set down in all three of the directives, which allow for difference of treatment based on a genuine occupational requirement.

The clearest example I can give, as already mentioned, of access to a job which could be restricted on the basis of this exclusion is the case of employment of a carer to look after an elderly woman in her home. It would be inconceivable that a job of this nature would be open to all comers regardless of their gender and the wishes of the potential employer. Having reconsidered the matter, as I promised I would on Committee Stage, I cannot accept the amendment.

While none of us would have difficulty accepting the case the Minister of State set forth regarding an elderly person who may require a personal carer, it is my contention that the definition in the legislation does not restrict it to the terms of that specific example. The definition of personal services the Minister of State cited states they "include" but are "not limited to" services that are in the nature of servicesin loco parentis. In other words, personal services can cover basic services provided by domestics and au pairs. An au pair provides a service in loco parentis and his or her main function is to look after children. Under the legislation there will be restrictions on who can apply for such positions and, therefore, the legislation is incomplete, which is why I tabled the amendment.

None of us have difficulty with the cases outlined by the Minister of State but the legislation is not restricted to such cases. That is where lies the difficulty. The definition is wider than the Minister of State acknowledges, and if it were restricted to the examples outlined by him none of us would have a difficulty.

I support Deputy Paul McGrath and disagree with the Minister of State. On the Order of Business, the Tánaiste said the Government does not make legislation at the behest of the media and we should not depend on the media. The Minister of State thinks Opposition Members or himself will be figures of fun in the media if we pass this legislation and it is a sad day if he is not willing to proceed with what is correct because he fears being made a figure of fun.

I will stand up for what is right. The amendment relates to employment rights. When legislation is amended it should be ensured the best course is taken, which is to make sure the two directives that are being transposed fully into Irish law and all their provisions are fully adhered to. Respect for private and family life is not a justification for a blanket ban. The Minister of State outlined one example but there are many other examples of potential discrimination based on the various grounds. We are tying to ensure there will be no discrimination in future and that is why the amendment has been tabled.

I do not want to be misrepresented. I did not say I was refusing the amendment because I was afraid of what the media would say. Having made the case against the amendment, I mentioned incidentally that the media would make fun of us if it was accepted because it is so bloody ridiculous. On Committee Stage Deputy Moynihan-Cronin referred to another amendment as political correctness gone mad. For instance, an elderly woman who wants somebody to care for her will advertise the job. An 18 year old body builder could take a successful action against her for discrimination because he was not considered for the position. That is political correctness gone mad.

It is wrong to state there is blanket ban. The exclusion has been considerably narrowed since the 1998 legislation and it was further narrowed as a result of the debate in the Seanad. It is confined to cases involving personal services. I take Deputy Paul McGrath's point but the difficulty is that if I accept the amendment I will open the door for cases such as that I outlined. There may be a case for distinguishing between caring services and a broader category of services but the definition as drafted is better.

We cannot provide in legislation for every scenario imaginable, otherwise we would write legislation forever and no Bill would be passed. We have struck the correct balance. The exclusion has been considerably narrowed by amending the 1998 Act. It has been further narrowed to cover only access to employment. "Personal services" is defined clearly and, at the end of the day, legislation cannot cover potential scenario and equality officers will be called on to adjudicate on personal services cases. I have every confidence in the equality officers to make the right decisions. Their record to date suggests they have been responsible in their interpretation of the 1998 and 2000 Acts.

Amendment put and declared lost.
Amendments Nos. 3 and 4 not moved.

I move amendment No. 5:

In page 9, to delete lines 12 to 17 and substitute the following:

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

We had a lengthy discussion on Committee Stage but, for the sake of the elderly, I tabled the amendment again. While I am not in favour of the Government going down the American route in general, it should do so on this issue. The US has an anti-ageism law and a similar law should be introduced in Ireland. If one is aged over 66, one is not necessarily finished. Many people work into their 80s and make a positive contribution. It should not be prescribed in law that people must leave employment upon reaching retirement age.

I went through the case for the amendment on Committee Stage and I told the Minister of State I would reconsider it. However, the provision is unfair and we will regret it because the elderly have a great deal to contribute to society. The Government will seek to amend this legislation again in the near future.

I support the amendment. The State went through a phase when retirement ages were prescribed for various professions but that was amended in legislation relating to the public service, which was passed by the Oireachtas recently. The retirement age for gardaí, psychiatric nurses, teachers and so on has been raised. Deputy Moynihan-Cronin is seeking to abolish the retirement age provisions.

There is a great deal of merit in the amendment. For example, gardaí must compulsorily retire at 57 years. Gardaí can retire on full pensions after serving 30 years and this means many can retire at between 50 and 52 years. A number of gardaí remain in the force despite meeting the 30 year requirement and they do an excellent job. However, when they reach 57 years, they are forced to retire. They still have a great deal to offer and they have tremendous experience.

We should consider this issue carefully. One can send a group of young gardaí to do a job which requires physical fitness but a mature garda accompanying them could be much more beneficial in completing a job satisfactorily than all the young gardaí put together. There is a role for people who are senior in their positions and, if they are able to work, they should be given that opportunity. Retirement should not be forced upon them.

Teachers are also forced to retire at a given age. I know someone who retired yesterday who is full of life and would love to continue teaching, but he was forced to give up his job because he had reached a certain age. He is an excellent teacher and it is a shame for the profession to lose that kind of experience. I know other legislative measures are changing those ages, but that does not change the compulsory nature of retirement. It is just shifting the goalposts in terms of age.

On Committee Stage Deputy Moynihan-Cronin asked the Minister of State to look at this again, but have we gone past the point of no return? Is he now unable to re-examine this or will he be magnanimous and accept the amendment, making it easier to change this in the future? There is a fair case for this amendment because experience carries much weight. The Minister of State tabled an amendment on Committee Stage which placed a great deal of emphasis on experience and this amendment is in keeping with the concept of experienced people being competent to do a job.

We discussed this at some length on Committee Stage. There are two types of employee in the country — those employed in the public sector and those employed in the private sector. The legislation which has just been passed deals with the situation in the public sector and effectively removes the compulsory retirement age for those entering the public sector after a certain date.

As for the private sector, I do not disagree with the logic of anything Deputies Moynihan-Cronin and Paul McGrath have said about the value of experience. Just because someone has passed a certain age, he or she is no less able to do his or her job than he or she was the day before reaching that age. I accept that logic. However, a change of this magnitude would have widespread socio-economic implications and I could not take the responsibility for introducing that change in this Bill. I do not have the authority of the Government to do that.

It should be borne in mind in the context of the general debate that if one removes the compulsory retirement age and it then becomes the practice for people to work beyond what was the compulsory retirement age, there will still be many people who will want to avail of their right to retire at 65. People think it is just a matter of a person either retiring or not retiring at 65, but if we have a situation where people generally work past 65 and are expected to do so by their employers, then life would not be quite the same for those who want to retire at 65.

Section 34(4) of the Employment Equality Act 1998 provided that: "Without prejudice tosubsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees.” Accepting this amendment would require the deletion of section 34(4) and, while the framework employment directive does not require it, the question of removing section 34(4) was raised with the social partners and relevant Departments. While recognising that the labour force is getting older and that the participation of older workers should be facilitated, a consensus emerged in consultations that this issue goes beyond employment equality policy and has broad socio-economic and industrial relations implications.

I remind Deputies that in 2000 and 2001, the Equality Authority convened and chaired an advisory committee charged with examining the issue of ageism and putting forward an equality agenda aimed at implementing equality for older people. This committee was composed of older people's organisations and the social partners. It examined in some detail a range of issues involving older people in work, including retirement, and it recommended the removal of the upper age limit of 65 from the Employment Equality Act 1998, which this Bill does. The committee made no recommendation on compulsory retirement ages other than to acknowledge that the right to retire at the age of 65 or earlier is a hard-won entitlement in some categories of employment and ought to be preserved.

In both the public and private sectors compulsory retirement age is a feature of many types of employment, which has been set over time, and in many cases after negotiation and collective bargaining. In the case of private sector employment, the removal of existing arrangements and agreements on compulsory retirement ages is a matter first for discussion between the social partners. As for public service employees, excluding those in commercial state bodies, the recently enacted Public Service Superannuation (Miscellaneous Provisions) Act 2004 removes the compulsory retirement ages for new entrants. I cannot accept this amendment.

I now know the reason the Minister of State will not accept this amendment, namely, the widespread implications of it presumably mean that, if this provision were accepted, it would cost companies money. I know advisory committees and social partners advocate this and that but we are here to make legislation. Those bodies are here to advise us and not to make legislation. We are making a mistake in this regard.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

Amendments Nos. 6, 8 and 9 are related and will be taken together.

I move amendment No. 6:

In page 12, lines 35 and 36, to delete "impose a disproportionate burden" and substitute "be grossly unreasonable".

We had a long debate on this provision on Committee Stage and I do not propose to delay the House. We must be careful with the employment of people disabilities. We should go out of our way to ensure that those with disabilities are employed and we must make it difficult for someone not to employ such people if they are able to do the job. In the legislation the Minister of State uses the phrase "impose a disproportionate burden on the employer". What is a disproportionate burden on an employer? If someone employs two people, then a relatively small expenditure can be a major burden, while a proportionately higher figure would be a burden on the employer of ten people. Obviously the figure is higher again for a multinational company or a State employer.

The emphasis should be on making it possible for those with disabilities to be employed if that is at all possible. Instead of the term "impose a disproportionate burden" we should use "grossly unreasonable". That is playing with words but it conveys a much stronger message to the employer, who must make a case for not employing a person with a disability rather than someone else. The phrase "grossly unreasonable" is much stronger than the wording in the legislation and conveys a different message to those with disabilities.

I propose amendment No. 9 since amendment No. 7, which was related, has been ruled out of order. I strongly welcome the change the Minister of State has made to the original formulation of this section in regard to determining what constitutes a disproportionate burden in respect of the duties of employers to take measures to ensure access to employment for people with disabilities. The purpose of amendment No. 9 is to ensure the public sector and large employers play a leadership role in regard to access for disabled workers in accordance with their greater means. Large employers and the public service have greater means than small employers. No employer should be able to get away with inflating his or her cost calculations because they do not want the bother of adapting their employment environment to ensure accessibility for disabled workers.

In pushing these amendments, I could quote from the Human Rights Commission, the Equality Coalition or even the Equality Authority. Each has made reasonable representations in this regard which take into account article 19 of EU directive 76/207 that provides that member states shall actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities in the areas referred to, that is, statutory duties. We should go much further and that is why I recommend this amendment.

I support Deputy Paul McGrath's amendment, which would send a stronger message to employers in regard to the employment of those with disabilities. The excuse many employers use for not employing those with disabilities is that there are cost implications. If small employers, in particular, have a difficulty with this, they should get some assistance. Private Members' Business this week concerned the disabled person's grant from local authorities, the difficulties and the value that money provides for people with disabilities.

The Government should look at the situation of small companies. I have no sympathy for large companies, which only use cost implications as an excuse. Many small companies find that the cost implications of perhaps redesigning an office or otherwise prevents them from employing those with disabilities even though they might want to do so. Some assistance should be made available for those small companies so that they are in a position to employ people with disabilities.

In regard to what Deputy Paul McGrath said, a disproportionate burden will vary depending on the circumstance of each case. We cannot write legislation to cover every eventuality. We are dealing with the obligation we are putting on employers to provide facilities to enable them to employ people with disabilities or to enable people with disabilities to work in that environment.

Any law we pass must be subject to the Constitution. There is a written Constitution in this country which governs the laws we make. The Supreme Court decides what aspects of that Constitution mean. The Supreme Court decided in the past that the biggest obligation one can put on an employer to spend money or to incur cost to provide such facilities for people with disabilities was nominal cost. It was a minimalist decision and one which was much criticised, but it was the decision of the Supreme Court which said that was what the Constitution meant.

How recent was that?

That was in regard to the Equal Status Act 2000. The position, in respect of the employment equality legislation is that we have now been enabled to go beyond the Supreme Court decision because of an EU directive which overrules its decision. The question we must ask is how far does it allow us to go. If one says that the incurring of extra cost is not to create a disproportionate burden on an employer, that is a more generous provision than the Supreme Court allowed, namely, nominal cost. Nominal cost is a nod in the direction of costs and if one cannot make the necessary changes for literally nothing, one does not have to make them at all. Now there is an obligation. One must go to the point where one is putting a disproportionate burden on one's self. That is a much more generous test. However, the question is how far do we go.

The interpretation in Deputy Paul McGrath's amendment would take the matter further. The advice I got from the Attorney General's office because of the difficult legal system here is that it is best to stick to the wording of the directive. The directive gives some guidelines as to how the term "disproportionate burden" will be defined in particular cases, and I have carried that into the legislation. There were a few other items in the legislation, to which Deputy Ó Snodaigh referred, which could enable the employer to mount a defence and I have taken them out. I have refined it in so far as I possibly can. In addition, there are positive obligations on the employer in section 16 of the 1998 Act to take reasonable measures.

In regard to the question of clarity, on Committee Stage Deputy Paul McGrath suggested that some independent standard setting, such as would be provided by a code of practice, should be considered to guide that which would constitute appropriate measures required of employers. Under the Equality Authority strategic plan for 2003 to 2005, a key activity to be undertaken is the development of a statutory code of practice on reasonable accommodation. This work is part of a broad programme by the authority in regard to reasonable accommodation for people with disabilities, all designed to promote understanding and awareness of the issues and how they apply in practice.

In addition, the National Disability Authority has statutory powers to draft codes of practice on standards in services for people with disabilities. I expect this area to be further developed in the context of the new measures proposed in the forthcoming disability Bill. In that context, I have arranged for the National Disability Authority to see me next week for a broad ranging discussion on the forthcoming disability Bill and this is one issue I have put on the agenda for detailed discussion. I thank Deputy Paul McGrath for his suggestion in that regard.

On the basis of the commitment given by the Minister of State that these guidelines will be brought forward, I am prepared to withdraw my two amendments.

Amendment, by leave, withdrawn.
Amendments Nos. 7 and 8 not moved.

I move amendment No. 9:

In page 12, between lines 44 and 45, to insert the following:

"(d) With respect to a determination made under subsections (b) and (c) that the burden imposed would be disproportionate, such a conclusion may only be drawn on the basis of a calculation of the net cost to employers after public funding and other available assistance has been deducted.”.

Amendment put and declared lost.

I move amendment No. 10:

In page 13, line 16, to delete "Nothing" and substitute "In relation to discrimination on the basis of nationality, nothing".

Further to the amendment to this provision, which I proposed and which was accepted on Committee Stage, I have now moved the preceding additional amendment to this provision. As I indicated on Committee Stage, the purpose of the exclusion under paragraph (a) of section 10 is to permit the lawful operation of the work permits regime, as provided for under the Employment Permits Act 2003. The original provision included in the Bill appears to be open to some misunderstanding in this regard and, in consequence, a simplified and more explicit provision was substituted on Committee Stage.

To clarify fully that the scope of the provision is limited to discrimination on the basis of nationality only, and for consistency with wording used in the Bill concerning amendment of the Equal Status Act 2000, I propose the insertion to this additional text. It is simply a technical amendment to improve what I proposed and what was accepted on Committee Stage.

Amendment agreed to.

I move amendment No. 11:

In page 14, line 49, to delete "deleted" and substitute "repealed".

This amendment is consequential to section 21, proposed by Deputy Paul McGrath on Committee Stage, which I accepted. Sections 14 and 21 are connected in that both are being replaced by section 8, inserting new section 14A into the Act of 1998. Therefore, I move that section 14 be amended as proposed. I am tidying up the wording and effectively accepting an amendment that was proposed by Deputy Paul McGrath on Committee Stage.

Amendment agreed to.

I move amendmentNo. 12:

In page 16, to delete lines 18 to 20 and substitute the following:

"Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality in practice between employees, being positive measures which employers must take—".

The purpose of this amendment to section 22, which amends section 33 of the Employment Equality Act, is to make positive measures a duty rather than a protected option. We now have an opportunity to introduce positive duties on public sector bodies to promote equality. Although the new directives do not create any specific obligations on member states in this regard, general obligations to promote equality already exist in the 1976 equality directive and under international human rights law. As such, we should accept the amendment.

The Equality Coalition had the following to say regarding the statutory positive duties which we are trying to promote. It pointed out that the Equality Bill does not include any sections amending the EEA or the ESA to incorporate a positive duty to promote equality directed at public sector employers and service providers. This omission runs contrary to Ireland's obligations under the Good Friday Agreement which require equivalent human rights and anti-discrimination protection, North and South.

Section 75 of the Northern Ireland Act 1998 imposes equality duties on public authorities and implementation is overseen by the Equality Commission of Northern Ireland, a statutory body. Compliance with these duties is secured through the publication of equality schemes, which demonstrate to the commission's satisfaction how the public authority will promote equality of opportunity between certain different individuals and groups. The Equality Authority has called for the introduction of a parallel system here. In addition, it has called for the authority to be in a position to monitor implementation of the statutory duty through the evaluation of action plans.

Making these positive duties mandatory and statutory is in line with best practice. It is also in line with our duties and responsibilities under the Good Friday Agreement to bring equality laws in line with those in the Six Counties, so there will be equal laws in both states in this country.

This matter was discussed at some length, particularly on Second Stage. When I listened to the speeches on Second Stage, I was amazed and had to consult my advisors to see if all other countries in Europe had such a positive duty in their legislation. I was surprised to discover that not one of them had, with the possible exception of Northern Ireland. The directives themselves do not oblige any state to bring in positive duties in this regard. The directives are in permissive form — they state that nothing shall prevent individual states from introducing these positive obligations. We have a provision in the 1998 Act whereby positive discrimination is permitted for certain limited categories of people, namely, those over the age of 50, members of the Traveller community and some others. The proposed amendment would make it much more extensive because it permits positive discrimination across all eight or nine grounds.

As regards section 75 of the Northern Ireland Equality Act, my interpretation is that the Good Friday Agreement requires the Government to take steps to further strengthen the protection of human rights in its jurisdiction. The measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland. It is not true, however, to state that the Good Friday Agreement requires an equivalence of equality provisions North and South. In particular, the commitment to create a statutory obligation on public authorities to carry out their functions with due regard to the need to promote equality of opportunity was made only by the British Government under the Good Friday Agreement.

In any case, my understanding is that the Northern Ireland equality legislation is currently being reviewed. A detailed review is being carried out to see whether those positive obligations created in section 75 of the Northern Ireland legislation are working in practice. I understand the review will be completed shortly, so the Government's preferred option is to await the outcome of that review. As far as I know, that is the only legislation in the EU, which imposes such positive obligations. We will await the outcome of the review to see how it is judged to be operating in practice, whether in effect it is making a real difference, what should be done and how it could be better implemented. We are awaiting the outcome of that wide-ranging review before taking any further steps in this regard.

The Government is awaiting a review but its attitude is regrettable because the review might be completed by the end of the year, thus enhancing the protections and statutory duties involved in section 75 of the Northern Ireland Act. That means we will still be lagging behind because the equality and human rights provisions of the Belfast Agreement state that what is required is to ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.

Whether Germany or Poland have such statutory duties is not necessarily relevant in this case. This is a duty and responsibility, which we, as citizens of this State, have taken on board. The Government has a duty to implement it to ensure that an equivalent level of protection is afforded. In this respect, I am seeking the statutory duties that have worked well so far. I realise that the Northern Ireland equality legislation is currently being reviewed but, while there is always room for improvement, it has been working well so far.

The reason for the review is to see whether it can be enhanced, in addition to the fact that a review process was built into the legislation. All legislation is reviewed on an ongoing basis, so there is no reason another review cannot begin once one has been concluded. It is a pity we are delaying the introduction of such statutory duties. Does the Minister of State agree that statutory duties can be positive? If there is a review in the North, and whether or not any other country has such statutory duties, it should make no difference if such duties can enhance human rights and the equality agenda. We should be taking the lead in this respect. It will be interesting to hear whether or not the Minister of State agrees that statutory duties are positive.

Of course I agree that positive statutory obligations are good, provided they work properly and achieve something in practice. The Good Friday Agreement obliged this State to provide at least an equivalent level of protection of human rights as pertains in Northern Ireland. That does not mean we have exactly the same equality provisions and deal with equality legislation in exactly the same manner as it is dealt with in Northern Ireland. All legislation comes up for review occasionally.

Deputy Ó Snodaigh stated that section 75 of the legislation in Northern Ireland is working very well, but I understand there are differing opinions as to whether it is making a real difference. This is precisely why a detailed review has been ordered. My understanding is that the results of that detailed review will be to hand very shortly. In the circumstances, it is more advisable to await the outcome before we take new steps in this jurisdiction.

I take it from the Minister of State's last point that if the review finds the legislation is working well and is a positive aspect of equality law, he will return to the House with new legislation to give effect to that in this jurisdiction.

If, as the Deputy states, the review is positive, the Government will give serious consideration to it.

Amendment, by leave, withdrawn.

I beg the Acting Chairman's indulgence briefly. On Committee Stage, the Minister of State tabled an amendment, which related to taking into account a person's experience when considering him or her for seniority purposes.

We will deal with that presently.

Does the Minister of State have a further amendment on the issue?

It relates to section 23.

We are coming to it now. It is the next amendment we will deal with. It is an issue I agreed to re-examine.

That is correct. I want to discuss it now because it relates to this section. There is a huge anomaly in section 23 about which I am glad the Government Chief Whip is in the House to hear.

It is the subject of discussion under the amendment we are coming to, if the Acting Chairman wishes to formally go through the process.

Is it acceptable to the Deputy that the issue be discussed on the amendment?

Arising from the deliberations of the Equality Authority almost two years ago——

Which amendment are we dealing with now?

We are proceeding to amendment No. 13 in the name of Deputy ÓSnodaigh but Deputy McGrath has raised a point on the section.

This issue has serious repercussions, particularly for Members of the House and the staff they recruit. Until almost two years ago, when a person was recruited as a clerical assistant in Leinster House or across the Civil Service, his or her age was taken into account. For example, at 18 years of age a person started on the base salary of €18,700. Prior to the change, if a person came into the House aged 21 or 24 years or older, he or she received progressively higher salaries. This was based on the fact that older people would have previous experience which was taken into account to put people at a higher incremental point on the clerical assistant scale.

It is my understanding that, based on the intervention of the Equality Authority, if the Acting Chairman or I now employ a person aged 30, 35 or 40 years old as a clerical assistant in the House and that person has a great deal of experience working in another office, is highly trained or possibly has a degree, he or she must still be recruited at the bottom level of €18,700. That is unacceptable and I am sure the Minister of State is aware of the difficulty it is causing Members in their efforts to recruit staff with experience who can competently do the job we require them to do. If one gets a person who is more mature and able to deal with the kinds of queries we have, it is not possible to recruit them at that starting salary.

We discussed this issue on Committee Stage and the Minister of State said he would examine it to see what could be done. The greater anomaly is that in the case of two people recruited to our group within three weeks of each other — one before the change occurred and one after — the person who was recruited before the change got on to a higher point on the scale than her colleague who was recruited three weeks later. The net effect is that two women are doing the same job very competently but one is receiving €100 less per week than the other. This goes against the spirit of what is contained in the legislation when we refer to equality, equal work, access to work, being competent to do the job and so on. That provision must be re-examined and changed.

Will the amendment proposed by the Minister of State rectify the anomaly to which I referred in order that Members of this House, who recruit people with obvious experience, can place them on the appropriate level of the pay scale commensurate with their experience? What is happening at present is grossly wrong, is militating against the quality of employees we employ and will cause further difficulties in recruiting the clerical assistance staff we so badly need and who need to be able to act competently on our behalf. I hope the Minister of State will clarify the position. He promised he would examine the matter and revert to us on Report Stage. Therefore, I hope he has all the answers for us and that the good news will emanate from him to everyone in the House.

I move amendmentNo. 13:

In page 17, line 29, to delete "unlawful" and substitute "lawful".

The purpose of this amendment is to prevent the unfair remuneration of workers with a disability at a lower rate of pay. Section 35(a)(i) would allow for discrimination on pay towards persons with a disability in that it would allow an employer to offer a lower rate of remuneration for a disabled person if, by reason of disability, the amount of work done by the employee during a particular period was less than the amount of work done, or which could reasonably be expected to be done, during that period by an employee without the disability. It states that the rate must be at least or above the national minimum wage, but we should not legislate for discrimination, as could happen in this regard. We should ensure that we delete such a reference so that nothing in this part of the Bill would make it lawful for employers to discriminate against disabled people.

I undertook to explain and deal more specifically with the point raised by Deputy Paul McGrath. The purpose of amending section 34 of the 1998 Act may be explained as follows. On Committee Stage, I moved an amendment to section 23, with a consequential amendment to section 3, to clarify that, for the purposes of section 34(7) of the Act, relative seniority of employees recruited at the same time may be determined having regard to their respective ages at the time of their recruitment because their length of service is equal and provided this is accepted in a collective agreement in place. The provision is in compliance with article 6 of the framework employment directive and the amendment was agreed. However, I promised to come back to this and to explain more fully what will be the effect of the proposal. The effect of this amendment is to provide for the continued validity of age provisions relating to the determination of relative seniority where they have been agreed collectively by employers and employees. We are talking about their relevance from the point of view of relative seniority and only when they have been the subject of a collective agreement. It is recognised that issues arise in the employment of staff and it may be impossible to determine relative seniority based on length of service. This can arise where a number of staff are recruited at the same time to the same category of post or employment. In such cases a tie-breaker may be required as seniority is often used to agree rosters, allocate overtime and decide which employees can take leave first and so on.

Where the tie-breaker agreed between staff and employers in the context of a collective agreement is based on the relative ages of the employees at the time of recruitment, it is appropriate to exclude such agreed arrangements from unlawful discrimination under the Act. By allowing such tie-breakers, where they exist, to continue to be lawful is irrelevant to the question of what recruitment or promotion criteria can be taken into account by an employer. Such criteria can include experience, training and so on. Employees' pay and pension rights are set by their terms and conditions of employment and their length of service and will be unaffected by relative seniority and how it is determined.

On Committee Stage, Deputy Paul McGrath asked if the amendment proposed was relevant to section 4 of the Houses of the Oireachtas Commission Act 2003. The answer is no. Section 4 of that Act makes provision,inter alia, for the rates of pay, conditions of employment and superannuation rights of persons providing secretarial services to the Houses of the Oireachtas. These issues are completely separate from and unaffected by questions relating to how relative seniority, based on the length of service, is determined.

In the context of the amendment to section 23 of the Bill and for the sake of added certainty as to its intention, a consequential amendment was made on Committee Stage to section (3A)(3) of the Bill, amending section 2 of the Act of 1998 to define collective agreement. The advice I got is that the problem adverted to by Deputy Paul McGrath is caused by section 34(6) of the 1998 Act, which prohibited rates of remuneration to be based on age. It gave a three-year lead-in period. If rates of remuneration were based on age, differing according to a person's age, one had three years in which to phase in equality. After there years one had an absolute obligation under section 34(6) of the 1998 Act to outlaw discrimination in terms of remuneration based simply on age. Section 34(6) reads:

Where immediately before the relevant day [that is the implementation day] arrangements are in force in any employment for age-related remuneration, it shall be a sufficient compliance with this Part andPart II if those arrangements are brought to an end within the period of 3 years beginning on the relevant day.

In other words, what the section says in the example advocated by Deputy McGrath is that if a person comes into this House at the age of 18 seeking a job as a secretary and is employed as a secretary, one is prevented by law, under the specific terms of section 34(6) from paying her less than another person who comes in on the same day and is twice her age, and probably has much more experience.

Is that not the nub of the problem?

We are faced with a situation where because the issue is outlawed by law one cannot reward a person for his or her experience. Hence we are again stuck with the problem where it will be extremely difficult to recruit staff. The Minister of State knows the kind of person we need as secretary. Such a person has to be a Jack-of-all-trades. He or she has to be competent as a secretary, has to be able to do research, deal with customers, clients and Departments, schedule timetables and so on. These are not just clerical assistants.

This is a major problem. If, for example, the person we are looking for is put into a legal office, that office will be able to pay them a great deal more than they would get on the starting salary here of €18,700. This leads to difficulties in recruiting staff in Leinster House. The position is not as bad in the provinces yet, but it will catch up in a short time.

Can section 34(6) of the 1998 Act be amended or is there something we can do to alleviate the difficulty? Let us be honest, it is about helping ourselves, helping the House to do its work better and helping us to employ the clerical assistants who will be competent to do the job for us. As we lose some of our senior people and wish to replace them we will not get people with the experience necessary. Because section 34 of the 1998 Act is so perfect that one cannot discriminate on age grounds, surely it can be amended to allow experience to count for incremental purposes. We have to be able to say that if a person comes in here with the relevant experience it enables that person to climb the ladder in terms of remuneration. We will not solve this problem today. I suggest the Minister of State and his staff look at the matter with a view to bringing forward a solution to get over this obvious difficulty.

I am glad to inform Deputy McGrath I have the same secretary as I had 22 years ago and she has learned a great deal on the job. She is much wiser now than when she started.

Could the Minister of State replace her?

If she left, the Minister of State would have to take on a person on a salary of €18,700.

I understand there is a difficulty. Deputy McGrath mentioned an amendment to provide for different rates of remuneration based on experience as evidenced by age. On the seniority issue we have permitted a very limited amount of discrimination in the case of an unusual tie-breaker where persons are recruited to the same post on the same day but happen to be different ages, and the whole arrangement has to be subject to a collective agreement. If we go further and allow exceptions for people to be remunerated, seniority only determines when one can take leave and so on. If it is to be extended to the area of pay — I understand the problem which Deputy McGrath has identified and it is a real problem — the difficulty is that we would be in breach of the terms of the directives.

If Deputy McGrath and I simultaneously acquire a vacancy in our offices for a secretarial assistant and I take on a person of 20 years of age while Deputy McGrath takes on a person with more experience at the age of 40, the system permits him to pay that person more. The converse is that the system permits my secretarial assistant to be paid less, and that is in breach of section 34(6) of the 1998 Act. That section could be amended as there is no legislation that cannot be amended. However, it has to be amended within the terms of the EU directives. This is a real problem and I am pleased Deputy McGrath has brought it to our attention. I may not have concentrated on it sufficiently on Committee Stage in the Seanad but now I understand it perfectly. I will discuss the problem with the Chief Whip and my officials to see whether there is any way around it. Whatever about the legislation, we must be conscious of the terms of the equality directives.

While I do not wish to labour the point further, it is crucial. If the EU directive has not taken into account the relevant experience of two people of different ages, there is something radically wrong. How do we cope in our own circumstances given that we have long-service increments? Does it mean we are discriminating against the rookie in his first year if the older codgers like the Minister of State and me who have been Members of this House for a long time are paid more because of our experience? Many would say we are doing the same job.

The increment is based on length of service, not age.

Is it not experience really?

No, length of service.

Can somebody who was doing the same job in a different sector have the experience from a previous job taken into account? A further remarkable point comes to my mind that some of the secretaries who left us here went to work in State agencies, hospitals and health boards. They did not have to start at clerical officer grade again on €18,700. The fact that they had gained experience here was taken into account when their salaries were allocated. Is it not ironic that while the purest example, which is here, involves a straightforward salary scale which starts at €18,700, State agencies being paid for from the public purse have a different system? I acknowledge the Minister of State says he will consider the matter and will be able to come up with something with his officials. Will he examine the issue as a matter of urgency as it is causing several problems? It is an issue which must be addressed quickly.

Will the Minister of State address the concerns I raised through amendment No. 13? On the issue to which Deputy Paul McGrath referred, a simple solution would be to bring people in at a higher grade with a greater level of remuneration.

I have asked my officials to send me a report on the matter, which I will discuss with the Chief Whip and the people who run the Houses of the Oireachtas. If Deputy Paul McGrath wishes to raise the matter with me again in due course, I will tell him what has happened.

If the officials want clarification, I can give them names.

On Committee Stage, I rejected the Fine Gael amendment which Deputy Ó Snodaigh has moved as amendment No. 13. As I said previously, the amendment would remove an intentionally enabling provision from the 1998 Act and replace it with an inflexible and dogmatic approach. Section 24 involves a strengthening of the provisions in section 35 and provides added safeguards to ensure that different rates of remuneration may be paid only by reference to a lesser output of work in a particular period.

We have discussed the provision in the 1998 Act on disability as a discriminatory ground. We have discussed how section 16, which is also being strengthened by the Bill, requires employers to accommodate the needs of people with disabilities in the workplace and places a more onerous requirement to introduce appropriate measures to achieve this. Where an employee continues to be unable to participate in employment without further accommodation above and beyond the scope of section 16, section 24 allows an alternative arrangement to be entered into subject to important safeguards. These safeguards limit the basis on which a different rate of pay may be provided relative to the output in a given time. In no case can a rate less than the minimum wage be paid.

As I said on Committee Stage, this provision is not intended to punish people with disabilities, it is made with the specific purpose of encouraging employers to employ more disabled people. In the real world, if an employer is faced with an able-bodied and disabled candidate for a job, which requires a certain degree of physical ability, his or her natural inclination will be to consider that the able-bodied person will be more productive. If the employer must pay the same salary to either candidate, why would he or she not choose the able-bodied person? I am sure an employer would be able to invent all manner of excuses because no one will admit that he or she did not employ a person on the ground of disability. The provision in question is intended to encourage employers and give them an incentive to employ people with disability.

Discrimination on these grounds is recognised as necessary in the EU directive itself. I admit that section 35 of the 1998 Act dealt with this area but its provisions were a little loose, ambiguous and broad. Certain unscrupulous employers might have been enabled to abuse legislation drafted in such vague and general terms. We have tightened up the provisions immeasurably and provided that discrimination of this nature can only occur in employment where output can be measured over a particular period. This is far from being the case in every employment. The criterion is very specific. I have asked for the legislation to be drafted to ensure that an employer cannot discriminate in jobs in which specific outputs cannot be measured over a particular period. Such jobs constitute probably the majority of positions now, although that is another day's work. Senator Terry of Fine Gael pointed out on Committee Stage in the Seanad that provision had not been made for a minimum wage, which we should have noted ourselves. I accepted her amendment and thanked her as it was important to include that safeguard.

I reassure the House that this is an enabling provision, which is made not to punish disabled persons but to give employers the proper incentive to employ them. If we provide that an employer must pay a disabled or able-bodied employee at the same rate even in occupations where output is measurable over a particular period and it is manifest that a disabled person will produce less through no fault of his or her own, it is logical that the employer will hire the able-bodied person. Employers would be able to make a range of excuses on grounds of experience, etc. The provision is an enabling one. We have reduced exclusion to the maximum possible extent to make it very narrow. It relates only to occupations in which output can be measured over a period and in which it is demonstrable that the output of the disabled person will be less than that of the able-bodied person. In those circumstances, an employer might be encouraged to take on two people with disabilities where a disabled person's output is half, although they will not be paid at a rate less than the minimum wage.

I ask the House to accept the section as it stands. It is being introduced to aid people with disabilities not to punish them.

Amendment, by leave, withdrawn.

I move amendmentNo. 14:

In page 17, line 45, after "by" to insert "the deletion of section 37(1) and".

The purpose of the proposed deletion of section 37(1) is to protect workers from unnecessary discrimination by religious institutions on the ground of religion or any other ground. Section 37(1) of the Employment Equality Act 1998 provides that a religious institution may give favourable treatment to prospective employees of a particular faith:

. . . where it is reasonable to do so in order to maintain the religious ethos of the institution, or

(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.

However, what exactly constitutes a reasonable justification for such discrimination remains unspecified. A religious institution seeking an excuse to terminate or refuse to hire or promote an employee because, for example, the person is gay, divorced or West African, could too easily point to vague provisions as justification.

I have written to the Minister on this matter on foot of concerns raised with me by the Irish National Teachers' Organisation, whose material I included with my letter. The Minister will also be aware that the Equality Authority's recommendation No. 30 recommends that the provision of section 37(1) on religious ethos should be amended to ensure it is not a source of discrimination on the grounds of sexual orientation or family status in particular.

The religious institutions already have sufficient protection. Therefore, this section is unnecessary, besides being potentially harmful. For example, section 16 of the Bill provides that nothing in the Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position or to provide training or experience to an individual in relation to a position, if the individual will not undertake or, as the case may be, continue to accept the conditions under which those duties are, or may be required to be, performed. For these reasons, I believe the deletion of section 37(1) is necessary to strengthen the Act to provide a genuine guarantee of equality and freedom from discrimination in employment by religious institutions.

I received a copy of Deputy Ó Snodaigh's correspondence to the Minister for Justice, Equality and Law Reform and he kindly enclosed a copy of the correspondence he received from the INTO. Having examined the correspondence and noted the difficulties the INTO has with the section, I think its fears are misplaced.

On Committee Stage Deputy Ó Snodaigh referred to concerns the INTO had about section 37(1) of the 1998 Act, a provision not subject to amendment in the Equality Bill 2004. I understand these concerns relate to the application of the provision beyond the general provision with regard to occupational requirement and that it is not confined in scope to the religious ground. I responded to these issues when the Bill was debated in the Seanad. However, in line with undertakings I gave to the Seanad and the committee, in the meantime further consideration has been given to the provision. I am satisfied that the present wording of the provision, which provides for two distinct forms of conduct for specific reasons, is integral to the overall balance and cohesion of the provision and the circumstances in which the religious ethos of an institution may be maintained and protected.

The distinction made in section 37(1) is between permitting more favourable treatment of one person compared to another under paragraph 37(1)(a) on the one hand, and on the other, taking action to prevent a person from undermining such an ethos under paragraph 37(1)(b). In the former case, discrimination is permitted by reference to the religion ground and must be defended by reference to the religion or non-religion of the person discriminated against. In the latter case, the religious ethos of the employer may give rise to a need to take action to prevent another person, regardless of that person’s religion or non-religion, from undermining this ethos.

Strict tests apply to the application of the exemption in section 37(1)(b). First, the discrimination must be essential for the maintenance of the religious ethos of the institution and, second, it must be reasonable in order to avoid undermining that ethos. These are not subjective tests, which would apply on the simple say-so or opinion of the institution concerned. They are balanced, objective tests, which can be adjudicated upon by independent third parties such as equality officers, the Labour Court or, in some circumstances, other courts.

Section 31 of the 1998 Act was inserted to permit discrimination by religious bodies in certain circumstances. These provisions are not affected by the provisions of the equality directives, the transposition of which is the purpose of this legislation. Article 4.1 of the framework employment directive mirrors the provisions in section 37(1) and it is not proposed to amend this provision in the Bill before the House.

Amendment, by leave, withdrawn.

I move amendment No. 15:

In page 19, between lines 22 and 23, to insert the following:

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

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

The purpose of this amendment is to require employers to take positive action on racism. We discussed this on Committee Stage. I asked for the Minister's reply on this matter to be forwarded to me but I did not get it, although I did get replies on two other issues. I would now like to hear what the Minister has to say on the issue. I intend to withdraw one amendment as a result of one of the replies I received. I understand the non-sending of the reply was an oversight and do not wish to be critical.

However, as I said on Committee Stage, now that we have more foreign and permit workers than ever, if employers are more proactive on racism, we will have a better working environment for employees. If employees were aware that their employers were active on the issue, this would reduce the incidence of racism in the workplace. Employers should not sit back and wait to be forced by the Equality Authority to take action on racism. It is an issue we must face up to. Although we did not believe it would happen, unfortunately, it takes place every day.

Many of our foreign workers work hard, like our former emigrants, to send money home to their families and should be allowed to work without suffering the type of racist insults they receive in the workplace. I urge the Minister to require that employers be more proactive on racism in the workplace particularly now that there are so many foreign workers in the country who need to be protected from the racist minority.

I have had complaints from foreigners working here. It is difficult enough to work in a foreign country, with language barriers, etc., without having to tolerate racist remarks in the workplace. This does not help their situation. The Minister of State may not accept this amendment but will he and his officials examine the issue of racism, particularly as it occurs in large workplaces? It does not seem to occur so much in the smaller workplaces because they are more intimate places in which to work. I urge the Minister of State to research the issue and do something about it.

I am in broad agreement with Deputy Moynihan-Cronin. We must deplore what is a minority situation. Racism does not occur everywhere but I too have come across incidents of it. It must be condemned in the strongest terms.

The difficulty with this amendment is that nowhere in the directives is it envisaged that there should be a compulsion on employers to establish equality plans. In the 1998 Act the Equality Authority is given the right to ask employers to establish such plans on certain occasions and is also given the right to establish them itself. The difficulty with this amendment is that compulsion is not envisaged. If we accepted the amendment in its present form, effectively, it would mean that indirectly there would be compulsion because irrespective of what anybody said then, the employer literally would have no defence. The presumption goes against the employer.

I take on board what the Deputy said. I have a fairly detailed reply on this and I will arrange for a copy of it to be sent immediately to the Deputy. This is a matter that must be examined in some detail.

At it is now1 p.m. I will have to put the question, but prior to doing so I understand the Minister of State indicated his intention to accept Opposition amendment No. 25. Can I get confirmation from him on that?

Yes, amendment No. 25 is an Opposition amendment in the name of Deputy Moynihan-Cronin on behalf of the Labour Party. It is a useful amendment and it will enhance the legislation considerably. I sincerely thank Deputy Moynihan-Cronin and her advisers, some of whom I know, for their ingenuity in putting forward this amendment. I am delighted to accept it.

I thank the Minister of State for that.

I thank all Deputies and Senators for their constructive and informed contributions to this debate. The Bill is now a far better one than the one we started with. That is due in great measure to the positive contributions of Opposition Deputies. I take this opportunity to thank my officials for the sterling work they have done, often late at night when amendments came in late, in preparing the legislation. They have done a tremendous job. Equality law here has been enhanced immeasurably by what has been done by the Government side, my officials and by the contributions of the Opposition.

In accordance with the order of the Dáil I must put the following question: "That amendment No. 25 and the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill; that Fourth Stage is hereby completed; and the Bill is hereby passed."

Question put and agreed to.