This Bill is the most significant contribution to the fight against discrimination in employment since the first Anti-Discrimination Act of more than 23 years ago. When enacted, the Bill will give Ireland one of the most modern equality codes in Europe.
There is an obligation on all of us, Government, employers and trades unions, to work towards the development of social justice. Equality is a fundamental human right, which is especially important in the economic sphere. Individuals in society have a basic right to seek gainful employment and to advance in that employment, without being discriminated against because of personal characteristics unconnected with their work performance. The Bill fulfils the Government's commitment to introduce broad-ranging legislation to outlaw discrimination in employment on the grounds of gender, marital and family status, sexual orientation, religion, age, disability, race and membership of the travelling community.
The scope of the Bill is comprehensive, and deals with all employment-related areas, from vocational training to access to employment and employment conditions generally, including training, work experience and promotion. It also imposes obligations on trade and professional bodies, on advertisers and on placement agencies to act in a non-discriminatory way. It draws on the developments, experience and practice that have informed the work towards gender equality over the past two decades.
The Bill responds to the radical change that has been taking place, and continues to take place, in Irish society. Our society, which until recently had adopted a relatively closed and homogeneous outlook, is rapidly taking on a new open, pluralist and strongly European identity. This new identity is increasingly evident in working life.
The world of work is no longer peopled predominantly by married men with full-time permanent jobs. The emerging work environment includes many employment options, from part-time employment to job-sharing and teleworking. It is peopled by men and women, some of whom are the sole breadwinners, while others contribute, in equal measure with a partner, to the economic support of home and family. Increasingly, people with disabilities are demanding their right to a full role in economic life, including a place in this more flexible world of work. A more open approach to issues of sexual orientation, changes in family status, and an increase in ethnic and religious diversity, leave members of some of our minority groups more visible and perhaps more vulnerable in the workplace. The fact that few people are guaranteed a job for life, coupled with the high levels of unemployment, means that more older people than ever before are seeking work.
In the emerging employment market, equality of opportunity represents a fundamental element in labour protection legislation. Discrimination is not a theoretical problem. For too many people, it is an unacceptable reality. Take discrimination on the grounds of age. A quick scan of the situations vacant columns in any daily newspaper provides ample evidence of outright discrimination. Labour force statistics show that older workers once unemployed are likely to remain unemployed for longer than their younger counterparts. The report of the task force on long-term unemployment shows that alongside the increasing incidence of long-term unemployment among older workers, other motivational factors are at work. A study in Tallaght by Ronayne and Creedon in 1992 reported that only one out of every three long-term unemployed people over the age of 45 had an expectation of ever getting a job again. The perceptions of these individuals are more than confirmed by the reality. Statistics show that a man aged over 45 and out of work for two years or more has only one chance in ten of being re-employed.
Unfortunately, there is widespread discrimination on the grounds of disability. In its recent report, A Strategy for Equality, the Commission on the Status of People with Disabilities estimated that some 360,000 Irish people, or 10 per cent of the population, have a disability. The National Rehabilitation Board, together with other agencies, has been working over the years to ensure the integration of people with disabilities into employment. An EC Labour Force Survey in 1989 indicated that “the chances of someone with a disability being unemployed are significantly higher than someone without a disability”.
There is a view that equal opportunities in the workplace represent a cost to business. Success in today's internationally competitive business environment involves utilising the talents of all employees, without regard to ability-neutral characteristics such as sex, disability or sexual orientation. Employers and managers who overlook able employees because of traditional prejudices are guilty both of injustice and of waste in deploying the human resources available to them. They may even jeopardise the viability of their enterprise, because there is nothing more certain than that there are other enterprises that have succeeded in tapping the energies and abilities of their employees. It is past time that we relinquish outmoded preferences that perpetuate narrow discriminatory practices, so that our society can prosper and work towards greater social equity.
Discrimination in employment often weighs disproportionately on those who are already marginalised in our society — members of the travelling community, older people and people with disabilities. Employment equality legislation is one essential tool to help redress disadvantage. Experience to date in relation to gender equality well illustrates both the limitations and the importance of legislative action.
Employment equality legislation for women has been on the statute books for 23 years. We live in a far more equality conscious environment than we did in 1974. Employment equality legislation is partly responsible for that change in outlook. The days are long past when it is socially or politically acceptable to justify unequal treatment by reference to differences in biological or social function. However, acceptance of the principle of equality does not appear to have been matched with practical action to achieve it. To illustrate the point, I would like to outline the state of play in relation to three key equality issues — pay, labour market participation and segregation in employment. Each of these issues fundamentally affects women's economic power and earning potential.
Looking at the issue of pay first, across the EU today we see that women earn substantially less than men. In Ireland, the average hourly earnings of women who work in manufacturing industry is only 74 per cent of that earned by their male counterparts. The situation outside the manufacturing industry is not much better. An ESRI study published in 1994 entitled Male-Female Wage Differentials: Analysis and Policy Issues examined the earnings of men and women workers in all sectors. The study found that women's earnings were only 80 per cent of those of men. The study also found that half of the 20 per cent difference could be attributed to factors such as skill, hours worked, length of service and experience. It is possible that the remaining 10 per cent of the discrepancy is the result of pay discrimination.
Regarding women's share in the labour market it is evident that, like other European countries, Ireland has experienced a strong increase in labour market growth. Employment in Ireland has grown by 8.5 per cent in the period 1991-95. The increase in female employment has been even higher, with growth of 20 per cent. There are more jobs for women. The participation rate for women in the labour market has increased from 32.9 per cent to 38.5 per cent in the last five years. However, many of these jobs are concentrated in low paid, part-time and other atypical work and it is to these jobs that many of the new entrants to the workforce, primarily women, are recruited.
Finally, women's economic power and earnings potential are affected because the world of work is segregated both vertically and horizontally. The number of women in key decision making roles in our public and private organisations is conspicuously low. Women are under-represented at board level in our major manufacturing and industrial concerns and on the boards of our service and financial institutions. Men occupy the majority of management, professional and supervisory positions and women, by and large, are responsible for the delivery of routine, clerical and support services. Women are also segregated in the low paid sectors of the economy such as the clothing, assembly and services.
I know from meeting the two sides of industry that employers and trades unions support the principle of employment equality. Despite this support, there has been a falling short in the achievement of equality of opportunities in practice. I am convinced that if real progress is to be made in the future we must focus on positive action to integrate women and other disadvantaged workers into the labour market. The Bill provides significant legislative arrangements for the pro-active management of equal opportunities programmes at the level of the firm. These are contained in section 70 which establishes arrangements for equality reviews and action plans.
I have also provided in sections 24 and 33 an opportunity for employers to put in place positive action measures to help women workers, workers with disabilities, older workers and workers from the travelling community. Trades unions have a serious obligation to assist in putting in place these equal opportunities initiatives and in exploiting their benefits in practice.
I would like employers to seize the occasion of this Bill to conduct an equality audit of their workplaces and put in place targets to ensure the removal of remaining barriers to equal opportunities. I am hopeful too that some employers will avail of the opportunity afforded for the first time by this Bill to introduce schemes of positive action geared to help eliminate existing inequalities.
Trades unions must intensify efforts to help women and other disadvantaged workers collectively and individually to attain equal pay and equal treatment. I am confident that this Bill will give the issue of equality in the workplace a considerably greater profile. Following its enactment, I look forward to an increasingly active role being taken by more and more individual women and other disadvantaged workers in defending and advancing their own interests and rights in the workplace, either in the trades union movement or in other ways.
The issues involved in the development of full gender equality at work are complex and can only be addressed over time and in response to a broad based programme. In 1974 the first piece of employment equality legislation was presented to Dáil Éireann. Deputy Michael O'Leary, the then Minister for Labour, in presenting the Bill stated that "much needs to be done to improve the status of women in employment". It is disquieting to note that, despite some significant achievements in the intervening years, this statement remains true today.
Nonetheless there has been progress. In 1974, two women Senators contributed to the debate on that first piece of employment equality legislation. One of them, Mary Robinson, is today President of Ireland and the other Evelyn Owens is Chairman of the Labour Court. Twenty years ago both of these important offices would have been clearly categorised as men's jobs. Attitudes in Ireland have progressed but substantial equality in employment for the vast majority of women remains an elusive goal. There is need for continued vigilance by women, their representative organisations, employers and State agencies to ensure that acceptance of the principle of equality is matched by a real will to eliminate discrimination.
I have taken steps to facilitate the reconciliation of work and family life through enactment of the Maternity Protection Act, 1994, and the Adoptive Leave Act, 1995. I have supported adoption of the directive on parental leave at EU level. The transposition into Irish law of this directive can be expected to greatly ease the child rearing burden for many new working parents. Allied to these developments, facilities for childcare support for working parents have been promoted through a pilot scheme for disadvantaged areas funded by my Department. The achievements of this scheme in its first two years, 1994-95, have recently been evaluated. The results indicate that some 2,000 additional children benefited from the further childcare facilities funded under the project. This is a significant step forward and one which I intend to take further. As part of the Partnership 2000 agreement recently concluded with the social partners, the development of the childcare sector is especially profiled. I intend that my Department will play a central role in pursuing this issue.
To broaden the decision making role of women, I have moved to ensure an increase in the number of women on State boards. In 1992, only 15 per cent of positions on State boards were held by women. In 1993, the Government, on my proposal, decided to work towards a target of a minimum 40 per cent representation level for women on State boards. The most recent information is that women comprise almost 26 per cent of the total membership of State boards.
In developing this Bill to cover the new discriminatory grounds, I have had regard to the individual rights based approach in existing gender employment equality legislation. I have also taken note of UK racial equality legislation and the various approaches adopted to deal with discrimination in other EU member states, Australia and the United States. The Australian model in particular has proved a fruitful source of inspiration.
In contrast, the gender equality provisions in Part III of the Bill have been drawn so as to ensure concordance with the requirements of EU law. The Bill transposes into Irish law the equal pay and equal treatment directives following repeal in the Bill of the substantive provisions of the 1974 and 1977 equality Acts. The Bill also meets Irish obligations with regard to equal pay under Article 119 of the Treaty of Rome and builds on the substantial body of case law that has been handed down by the European Court of Justice in the past 20 years.
I now wish to outline some of the main features of the Bill. The text of the Bill falls into six Parts as follows. Part I contains standard and technical provisions; Part II sets out the prohibited discriminatory grounds and establishes the scope of the Bill; Part III deals with discrimination on grounds of gender and gives effect to EU law in this area; Part IV deals with discrimination on grounds other than gender, namely marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community; Part V provides means of redress and compensation for persons who may have suffered discrimination; Part VI gives new powers to the equality authority which will replace the present Employment Equality Agency.
Part I of the Bill, comprising sections 1 to 5, provides for the powers to make orders and regulations under section 3, a provision in relation to expenses under section 4 and repeal of the Anti-Discrimination (Pay) Act, 1974, and the substantive provisions of the Employment Equality Act, 1977, under section 5.
Section 2 contains the necessary definitions. Some definitions which should be noted are the definition of advertisement which includes every form of advertisement whether in a newspaper or other publication, on television or radio or by display of a notice or by any other means; the definition of contract of employment which covers all employees in both the public and private sectors as well as workers employed through employment agencies — this broad definition of contract of employment is in line with that contained in recent labour legislation; the definition of disability which is broad enough to give protection from discrimination to all people with a disability; the definition of family status which encompasses both elder care and child care responsibilities; and the definition of remuneration which includes any consideration in cash or in kind which an employee receives, directly or indirectly from the employer in respect of employment.
Pension rights are excluded from this provision and my colleague, the Minister for Social Welfare, will bring forward any legislation necessary to ensure discharge of our obligations under Article 119 of the Treaty of the European Community and the various equality directives, including the Equal Pay Directive. I understand he will deal also with equal treatment in pensions on a wide range of other grounds in an amendment to the Pensions Act, 1990.
Part II comprises sections 6 to 17 of the Bill. Section 6 sets out the grounds on which discrimination is prohibited in the Bill. They are gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. The scope of the Bill is also established in this Part. Section 8 outlaws discrimination in relation to access to employment, conditions of employment, training or experience, promotion or regrading or classification of posts. Section 10 prohibits the publication or display of discriminatory job advertisements.
Section 11 prohibits discrimination by employment agencies. Section 12 prohibits discrimination by providers of vocational training. Section 13 prohibits discrimination by trades unions, employer organisations, professional bodies, trade associations and by any body which controls entry to or the carrying on of a profession, vocation or occupation. The procurement or attempted procurement of discrimination is prohibited by section 14. The extent of the liability of an employer or other person for actions of employees and other agents is set out in section 15.
Other provisions in this Part include: the definition of like work in section 7; general exclusions from the provisions of the Bill where a person is unwilling, unsuitable or unable to perform the duties of the post in section 16 and where acts are done in compliance with statutory requirements in section 17; and, finally, the making null and void of provisions in collective agreements that are discriminatory in section 9.
Part III comprising sections 18 to 27, deals with discrimination on gender grounds and gives effect to EU law in this area. Sections 19 and 20 provide an entitlement to men and women to equal remuneration in respect of like work where both are employed by the same or an associated employer. Discrimination in relation to other conditions of employment are prohibited in sections 21 and 22. Section 23 contains a definition of sexual harassment and explicitly provides that it amounts to discrimination.
Section 24 allows for positive action to eliminate the effects of past discrimination. It is a broadly couched provision and may be interpreted to include all forms of positive action, subject only to any limitation imposed by European Court of Justice case law.
Sections 25 to 27 allow exemptions from the principle of equal treatment. These exemptions include: an exemption for the purposes of authenticity in entertainment; an exemption for certain jobs abroad; an exemption for special advantageous treatment of women in connection with pregnancy, maternity and adoption; and an exemption for personal services, such as the care of an elderly or incapacitated person. Finally, there are limited exemptions for the Garda Síochána and the prison service for purposes related to privacy and decency; the control of violent individuals and riot situations; and for gender-based height requirements.
Part IV, consisting of sections 28 to 37, prohibits discrimination on any of the following grounds; marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. Sections 29 to 31 provide for equal pay for like work and for the prohibition of discrimination in relation to other conditions of employment. Section 32 outlaws harassment in employment on the basis of each of the discriminatory grounds set out in this Part. Section 33 allows positive action in favour of people with disabilities, people above the age of 50 and members of the travelling community.
Section 34 allows for the retention by employees of certain family and seniority related benefits that would otherwise be made unlawful under the Bill. It allows for the continued fixing of retirement ages and for the phasing out of age related pay. The section also permits the setting of a maximum recruitment age, on training related cost grounds, and for an exemption from the terms of the Bill where there is clear actuarial or other evidence of significantly increased costs for the employer.
Section 35 is focused primarily to require an employer to make special provision for a person with a disability. I amended this section and section 16 in the Dáil so as to make explicit in the Bill the concept of "reasonable accommodation". The amendments arise from concerns expressed to me by groups representing people with disabilities, and debate among Deputies on Committee Stage. Section 36 allows for the continued application of residency, citizenship and Irish language proficiency requirements in the public service and establishes criteria for the setting of educational and other qualifications.
Section 37 provides exclusions from the principle of equal treatment. They include: special provisions for religious, educational and medical institutions run by religious bodies; an exemption for the purposes of authenticity in entertainment; an exemption for jobs in circumstances abroad where, because of prevailing laws or customs, some categories of people could not reasonably be expected to operate effectively; an exemption for employment in a private household and an exemption for the security forces on the age and disability ground.
Section 37(1) as presented to Dáil Éireann provided an exemption for religious, educational and medical institutions and gave rise to considerable controversy. I replaced that provision by way of Government amendment on Report Stage in the Dáil. The new provision represents the culmination of a long process of consultation which I undertook with a wide variety of interested parties, as well as extensive deliberations with colleagues and with the Attorney General. The new provision represents a reasonable and measured balance between very different views on this most complex and sensitive issue.
Part V, consisting of sections 38 to 68, establishes the procedures for redressing discrimination. Sections 38 and 39 make provision for a Director of Equality Investigations and deal with certain definitional and related matters. Sections 40 and 45 provide a right to information for all persons who may have been discriminated against and set out the consequences for an employer of failure to supply information.
Sections 41, 43, 47 and 54 provide means of redress for a person who considers that she or he has been discriminated against, victimised or has not received equal remuneration. The Bill provides a right of redress of first instance to the Director of Equality Investigations for every person who may have been discriminated against contrary to the terms of the Bill. There is a right of appeal to the Labour Court against a decision of the director. The determination of the Labour Court is final, save for an appeal on a point of law to the High Court.
There are two exceptions to the general redress procedures. One is that a dismissal case will fall to be dealt with by the Labour Court in the first instance, with a right of appeal to the Circuit Court. The other exception is that in sex discrimination cases, an applicant may opt, instead of applying for redress to the director, to make a case to the Circuit Court. The normal ceiling on awards in the Circuit Court has been waived in such cases.
Section 42 allows for binding mediation where the Director of Equality Investigations or the Labour Court considers that the dispute could be resolved in this way and the parties to the dispute do not object to it. This provision will assist in the speedy and informal resolution of disputes in suitable cases.
There is provision for the award of substantial compensation in well-founded cases. Under section 46 the director or the Labour Court may order equal remuneration or equal treatment, as appropriate, from the date on which the case was referred. In addition, the director or the court may order an employer to pay up to three years' arrears of remuneration or to order compensation for other acts of discrimination or victimisation of up to a maximum of 104 weeks' remuneration. In a case where the person concerned was not in receipt of remuneration, there is provision for an order for compensation up to a maximum of £10,000. In a case involving the dismissal of an employee, the Labour Court may also order reinstatement or re-engagement of the employee if that is considered appropriate.
Arising from recent European Court of Justice case law I have provided, at section 44, means of redress without limit on the amount of compensation in gender equality cases. A person who may have been discriminated against on this ground may opt to seek redress through the Circuit Court. In such a case the only limit on the amount of compensation or arrears of remuneration which may be ordered is a six year time limit on the backdating of any compensation or arrears of remuneration. This limit on backdating is the maximum such limit enshrined in the generally applicable Statute of Limitations.
Sections 55 to 57 allow a person who has been awarded compensation under the Bill to enforce the award through the Circuit Court if the employer fails to make payment within a specified period. Sections 62 to 65 deal with offences under the Bill and with certain incidental provisions. Sections 58 to 61 give strong investigative powers to the Director of Equality Investigations and to the Labour Court to enter premises, to obtain relevant information through interview or otherwise, and to ensure the imposition of sanctions in the event of failure or refusal by persons to co-operate with an investigation.
Under section 49, the Equality Authority is empowered to refer disputes to the Director of Equality Investigations. The authority has the sole right to initiate proceedings in cases of discriminatory advertisements, including power to seek an injunction to prevent the filling of a job advertised in a discriminatory manner. The authority may also refer a case to the director on behalf of an individual where it would not be reasonable to expect an individual to refer the case — for example, because of the complexity of the case or because of the individual's fear of victimisation. The authority may also seek an injunction in respect of persistent discrimination.
Sections 50 and 51 empower the authority, or a person affected by a collective agreement, to refer the agreement to the director or, on appeal, to the Labour Court where it is considered that the agreement contains a discriminatory term or does not provide for equal remuneration. The purpose of a referral or appeal under these sections will be to identify which provisions, if any, of a collective agreement are null and void, and, where appropriate, to suggest how alternative provisions might be devised.
Part VI of the Bill, consisting of sections 69 to 73, is concerned with the authority. Section 69 gives new powers to the authority to prepare codes of practice that will have statutory recognition. Sections 70 and 71 give a new statutory role to the authority to carry out equality reviews and devise action plans. Sections 72 and 73 contain technical amendments to the provisions in the 1977 Act in relation to the authority.
I am committed to the implementation of a comprehensive programme to advance equality through a broad range of actions. The Employment Equality Bill is a central element in that programme and an essential step in the process towards the elimination of discrimination. Senators will have noted that some sections of the Bill are particularly complex and difficult. I look forward to hearing their views and hope for a fruitful and constructive debate on what is, without doubt, a ground breaking legislative initiative. I commend the Bill to Seanad Éireann.