SELECT COMMITTEE ON JUSTICE, EQUALITY AND WOMEN’S RIGHTS díospóireacht -
Wednesday, 13 May 1998

Vol. 1 No. 5

Employment Equality Bill, 1997: Committee Stage.

Section 1 agreed to.

SECTION 2.

Ms Fitzgerald

I move amendment No. 1:

In page 8, subsection (1), between lines 38 and 39, to insert the following:

"(f) a history of any condition, illness or disease which has resulted in a voluntary or involuntary admission to a psychiatric facility.".

We are pleased this legislation has reached this stage, even though we have tabled many amendments. It is appropriate that this legislation is being debated in parallel with preparations for the referendum on 22 May. A great deal of work has been done by the Department, this Administration and previous ones on the Bill and it is important to put it on the Statute Book as soon as possible. It has been long awaited and has taken a tortuous route to this point.

I want an additional provision included in this section. Many people have suffered discrimination and social disadvantage because they have a history of psychiatric treatment. Information about diagnosis or treatment has been used unfairly to deny emigration, professional or occupational licences, employment, insurance, housing and credit and otherwise reduce opportunities for full participation in society. The stigmatisation and discrimination in this area also tends to diminish the well being of the population as a whole by discouraging people from seeking psychiatric evaluation and treatment.

It is important to spell out in detail that a history of any condition or admission to hospital, voluntary or involuntary, should not be used in any way to discriminate in the workplace.

Minister for Justice, Equality and Law Reform (Mr. O’Donoghue)

I acknowledge the constructive nature of Deputy Fitzgerald's proposed amendment, but the disability it seeks to bring within the definition is covered. Paragraph (e) of the definition section describes any condition, illness or disease which affects a person's thought processes, perceptions of reality, emotions or judgment or which results in disturbed behaviour. Conditions, diseases and illnesses such as these are precisely those which may result in admission to a psychiatric facility. This paragraph is wider in its application that the proposed amendment because it covers a person who has suffered from any of these conditions, whether or not the person has been admitted to a facility.

The proposed amendment also seeks to bring within the scope of the definition of "disability" a person who has had a history of such illness. This aspect of the proposal is also adequately dealt with in the definition. The definition of "disability" is applied to a disability the exists at present, to one which previously existed and to those which may exist in the future and which may be imputed to a person. The provisions proposed in the amendment are already comprehended by the Bill and in those circumstances I ask the Deputy to withdraw her amendment.

Mrs. Barnes

I take the Minister's point but the amendment refers to the history of any condition or illness. I am prompted by hearing from daughters and sons of parents who suffered from depression and needed voluntary help. During interviews they were asked to state whether either parent suffered from such a condition. They believed they were discriminated against when they were not successful in job applications. "History" might comprehend a case that could be taken by an individual who believed the history of the condition of their parents might be used to discriminate against them.

Mr. Gilmore

The definition in paragraph (e) seems to be very precise in terms of the conditions to which it is proposed to apply. References to conditions, illnesses or diseases which affect a person's thought processes, perceptions of reality, emotions or judgments or which result in disturbed behaviours are very specific and may have precise meanings within psychiatry or the field of psychology. The amendment which refers to conditions which have resulted in admission on a voluntary or involuntary basis to a psychiatric facility irrespective of the cause of admission proposes a wider and more generous definition. What advice did the Minister get from psychiatric professionals for his definition? For example, the term "disturbed behaviour" has definite meaning and it would be useful if he outlined the advice he received.

Ms Fitzgerald

One advantage of including this provision is that when people apply for jobs, employers will focus on their ability and competence to perform tasks as opposed to their history and perceived abilities arising from it. It has been found elsewhere that it leads to employers having tighter job specifications. They focus on the tasks required and ability to carry them out. They do not refer to history which is irrelevant and this is a protection for those who have suffered mental illness in the past.

Mr. O’Donoghue

Line 39 is set out to deal with the history in that it is taken to include a disability which currently exists, which previously but no longer exists, or which may exist in the future or is imputed to a person. I take the words "which previously existed but no longer exists" to refer to the history of the individual's illness. In those circumstances the points made are covered.

In regard to Deputy Gilmore's point, psychological, psychiatric and psychotic conditions are covered by the definition. If any Deputy feels there is some condition which is not covered, I will be delighted to look at the position again.

Mrs. Barnes

Does the Minister believe the wording "or which is imputed to a person" might cover the point I am making where the history of the parents, not the individual, is concerned? Is the legislation strong enough to cover that?

Mr. O’Donoghue

I do. The whole question of imputation is covered. In line 40 there is direct reference to "or which may exist in the future or which is imputed to a person". That covers the Deputy's point satisfactorily.

Ms Fitzgerald

I am reassured by what the Minister has said and I hope it covers the issues I have addressed in the way he has outlined. Perhaps the forthcoming mental health legislation could develop this further. It is very important that this basic protection is included and, therefore, I withdraw the amendment.

Amendment, by leave, withdrawn.

Mr O’Donoghue

I move amendment No. 2:

In page 8, subsection (1), line 39, to delete "presently exists" and substitute "exists at present".

This is a technical amendment. The meanings of the word "presently" contained in the Oxford English Dictionary include "soon" and "shortly". Whilst the intention of the provision is clear and is intended to cover a disability which currently exists, it is desirable to ensure that no ambiguity arises at some future date about the interpretation of the provision. Consequently I am tabling this amendment to clarify the position.

Amendment agreed to.

Chairman

Amendment Nos. 3 and 4 are to be taken together by agreement.

Ms Fitzgerald

I move amendment No. 3:

In page 9, subsection (1), line 34, after "divorced" to insert ",cohabiting".

There was a long discussion in the Seanad on this topic and I will not rehearse all the arguments. I would simply like the Minister to address the reason for the omission of the concept of cohabiting when it is used in social welfare and other areas.

Mr. O’Donoghue

Deputy Fitzgerald is correct. I had a long discussion with Senators about this matter. There were a number of exchanges, none more robust than that with the inimitable Senator Norris. The definitions of marital status and family membership are based on legally recognisable states and family relationships. It would be inappropriate in this legislation to introduce a new marital status or family relationship which does not have a similar legal base. Therefore, I do not propose to add cohabitation as a category of marital status or family relationship.

As far as amendment No. 3 is concerned, a person who cohabits is already covered as having a marital status by reference to their legally recognisable marital state: single, married, separated, divorced or widowed. Senator Norris strongly disagreed with this interpretation. Ultimately I had to challenge him to name a person who was none of those categories. The definition in the Bill also applies to people who are living together irrespective of the nature of the relationship.

Amendment No. 4 seeks to extend the definition of member of the family to people who cohabit. As I have indicated, the definition of member of the family is based on legally recognised family relationships. In addition the extension of the definition would create practical difficulties including questions of definition of what the term means. For all these reasons I do not propose to accept the Deputies' amendments. I thank them for their proposals, but I firmly believe that the definitions of marital status and family membership are clear and comprehensive as they stand.

Ms O’Sullivan

The main concern in the Seanad debate was that someone who was cohabiting might not be protected under the legislation despite the fact that the Minister says the definitions are inclusive of people in all possible states. The central point of the debate in the Seanad was that an employer could get away with discriminating against a person on the basis that they were cohabiting and this legislation would not protect that individual in that circumstance. Is the Minister satisfied that a person who is cohabiting is protected under the legislation in the event that he or she feels they are being discriminated against in employment?

Mr. O’Donoghue

The whole question of marital status is clear. An individual is either single, married, separated, divorced or widowed. There can be no doubt of that legally. It is the legal status which must concern me in addressing this important issue. I do not believe that an individual can be discriminated against under this legislation on the basis that he or she is cohabiting. That is my view.

It is true that marriage has been defined as the voluntary union of a man and a woman to the exclusion of all others. It is also true that the bulk of legislation affecting family law has confined its privileges and protections to marriage-based families. The social welfare code is an exception to that. A cohabitee would not have any guaranteed rights in respect of the estate of a deceased partner nor any right to apply for provision of that estate. Many Deputies may feel this is not right and does not address the reality of many modern relationships but, whatever the pros and cons of that argument, this legislation dealing with discrimination is not an appropriate place to recognise in law concepts which hitherto have had no recognition. That is for another day and different legislation Every Deputy would have a different view of the precise characteristics of a cohabiting relationship. The fact that people have differing views of this surely reflects the lack of clarity about the nature of the long-term commitment in many, though not all, cohabiting relationships. In general terms I am satisfied on the question of an individual not being discriminated against on the grounds of cohabiting, but I am averse to any proposal that redefines relationships in the context of an anti-discrimination Bill.

Mr. Gilmore

I must express some admiration for the Minister's ability to reduce the complex area of human relationships to definitions of single, married, separated, divorced or widowed. I appreciate his points on succession and inheritance as well as the legal definition of cohabitation. However, this legislation is intended to prevent discrimination in employment. It is rare that one finds discrimination in employment on the basis of somebody being single, married or widowed. It is more likely that discrimination in employment occurs because of what is termed "cohabitation". The classic kind of case occurs when a professional married person sets up home, perhaps temporarily, and when a job comes up he or she is discriminated against. It does not arise because of their legal marital status as defined in this Bill, but directly from the fact that they are cohabiting.

Either discrimination on those grounds will be illegal under this legislation or it will not. The Minister should identify where this Bill makes discrimination on cohabitation grounds illegal. If a married teacher sets up home with another person and applies for a promotion he or she does not get because of his or her domestic situation, where is that made illegal in this Bill? Under what section can that person take a case to the agency or its director?

Mrs. Barnes

Deputy Gilmore has raised some of the points I wished to raise. Given the tradition in Ireland, discrimination can happen on the grounds of cohabiting, as was the case in the past. Cohabitation rather than marriage is an emerging lifestyle. Often it is not a question of a married person in an irregular domestic situation. People are entitled to protection in law against discrimination on the grounds of cohabitation. It is particularly relevant in Ireland because of our low level of legal divorce. This Bill stands by itself in relation to discrimination in employment and need not include social welfare or marriage law provisions. Where is this covered in the Bill?

Ms Fitzgerald

The Minister said that this may not be the place to address this issue in legislation. If one does not do so, what legislation will deal with it? Speakers have pointed out that cohabitation could be used in a discriminatory way in employment and we must be sure this does not happen. Cohabitation is recognised widely as a reality, yet there is no legal term to cover it.

Ms O’Sullivan

Other Deputies have covered my point. This legislation relates to employment and it is essential that somebody who feels he or she is being discriminated against has this legislation as a protection. How can they use this legislation practically to ensure that there is no discrimination on the grounds of cohabitation?

Mr. O’Donoghue

I maintain that a person, whether cohabiting or not, is single, married, separated, divorced or widowed. There is no doubt about that. A separated or married person can cohabit with a single person, but irrespective of how one looks at this, a cohabiting individual must come under the definition of marital status within the legislation.

The question raised by Deputies is where in the legislation it is stated that a cohabitee, irrespective of his or her marital status, may not be discriminated against. It is an interesting question and most interesting questions have interesting answers.

If an employer decided to discriminate against a cohabiting single person but not a married, divorced, separated or widowed cohabitee, there would be discrimination and the single cohabitee would have a case because he or she was being discriminated against and others were not. In that instance the single person would have a case along a range of possibilities. To say the least, there are a number of possibilities. It is obvious that there are various combinations which can occur. The problem is that if I were to insert a blanket provision into the legislation that there may be no discrimination on the grounds of cohabitation, I am immediately into a new definition of marital status. Such a definition is not incorporated in family law legislation and I am not dealing with such legislation, I am dealing with an employment equality Bill. It would be inappropriate to insert a new marital status.

Such a move would also be difficult because one would immediately have to consider what constituted a cohabitee. Is it someone who lives with a person for two or three days, a week, six months or a year? All of the consequences which flow from that would require consideration. Nonetheless, I recognise the concern and while holding my line that every person is either single, married, separated, divorced or widowed, there is provision for this legislation to be reviewed. Section 6(4) stipulates that the review should take place within two years of the section coming into operation to assess whether there is a need to add to the discriminatory grounds. That review will take place. If it becomes apparent that there is a problem, though I do not think that will happen, it will be appropriate for consideration to be given to the problem.

In summary, this is not the appropriate place for legislation of that kind. Marital status is set out. Should the issue become a problem it can be addressed in the context of the review.

Mr. Gilmore

The Minister has given an interesting answer. If one is to take the example of a teaching post in a rural village it would be an interesting competition if the only applicants were cohabitees who were single, separated, divorced and so on as described by the Minister. In such a case, if someone does not get the job and feels aggrieved they can appeal to the Director of Equality Investigations on the grounds that it was, let us say, the married cohabitee who was discriminated against instead of the single cohabitee.

The more likely scenario which must be addressed is where there are a number of applicants, among whom there is a cohabitee who believes that he or she is best qualified for the job. What if that person does not get the job and believes that the parish priest who chaired the interview board and the board of management concluded that his or her unsuitability was based on their cohabiting situation? That happens and it needs to be addressed in the legislation.

It is clear from the Minister's answer that there is no provision in the Bill under which that aggrieved person could make an appeal. It would be poor consolation for such a person to have to wait for two years for the Minister to review the legislation. That is an acknowledgement by the Minister that the Bill is weak on this point and it needs to be addressed.

Mrs. Barnes

Cohabiting exists and of all the statuses mentioned by the Minister, it is the one most likely to lead to discrimination. I welcome the review which will take place in two years. However, if there is no category built into the legislation it will be difficult for the cohabitee to fight it on those grounds. Therefore, the review might not be as satisfactory as we might hope.

Mr. O’Donoghue

I do not wish to go through all this again but the central issue is that the legislation covers nine grounds of discrimination and marital status does not include a cohabitee. Every person is either single, married, separated, divorced or widowed. If I were to include cohabitees we would be including a tenth ground in employment equality legislation. That would not be appropriate. A new definition for the purposes of marital status could not be included in legislation such as this because it would be inappropriate and careful consideration would have to be given to what constitutes a cohabitee for the purposes of the legislation. I have referred to the issue of how long people should be living together and so on. There is no doubt that the Bill deliberately covers nine grounds. It would be inappropriate to extend those grounds. In those circumstances, I regret that I am not in a position to accept the amendments.

Ms Fitzgerald

The problems of definition should not be insurmountable. I am sure that other jurisdictions have had to deal with this. I take the Minister's point on changing the definition in this legislation but I am worried for all the reasons outlined on this side. The Bill would be stronger and people would feel more protected if my amendments were accepted. I will withdraw the amendments at this stage but I intend to reintroduce them on Report Stage.

In the light of the points made to the Minister, I ask him to examine this issue again and to come back and spell out in detail how he believes this protection exists. In particular, he should address Deputy Gilmore's point. Is the protection there for someone to take a case if they feel they have grounds under this heading even though the word is not used in the Bill?

Amendment, by leave, withdrawn.

Amendment No. 4 not moved.

Ms O’Sullivan

I move amendment No. 5:

In page 10, subsection (1), lines 11 and 12, to delete "in relation to an employee, does not include pension rights but, subject to that,".

The issue here is that pension rights should be included under employment equality legislation. The debate in the Seanad was around the question of whether they should be included in this legislation or should be covered under pensions legislation. The Minister said it was a finely balanced argument. I would ask him to consider coming over to my side of the finely balanced argument on the basis that the question of pensions is surely an integral part of a person's employment rights.

The European Court of Justice has ruled that pay, as interpreted under the Equal Pay Act, 1974, includes pensions. I suggest it is regressive to exclude pensions under this legislation and I ask the Minister to consider taking the amendment on board to include the pensions issue under the protection of this legislation.

Mr. O’Donoghue

Deputy O'Sullivan's amendment would have the effect of introducing pensions equality into the Bill. Deputies will be aware that there is already a sophisticated code dealing with the whole question of equal treatment in the form of the Pensions Act, 1990. Any amendments to the pensions legislation would obviously be pursued by the Minister for Social, Community and Family Affairs who has responsibility for this matter and the application of EU obligations on equal treatment, pensions and the development of proposals for equality of pensions outside the gender area.

As Deputy O'Sullivan correctly points out, the decision to provide for equality of pensions in pensions legislation rather than this legislation is a finely balanced one. As I outlined in the Seanad, there are certainly arguments to support either approach. The approach which was taken by the then Fianna Fáil-Labour Government was the pensions legislation option.

I know there is a huge volume of European Court of Justice case law arising in equal pay for work of equal value cases. However, these judgments, as I pointed out in the Seanad, impinge as much on the existing Part VII of the Pensions Act, 1990, as they will in cases arising under Part III of this Bill.

In those circumstances I do not believe there is any particular advantage to be gained by deviating from that policy which is provided for in the Bill. I accept and acknowledge that there are arguments on both sides of the divide which are quite strong, but we had to come down on one side or the other and in the circumstances it was felt we should leave well enough alone. In those circumstances, I regret that I cannot accept Deputy O'Sullivan's amendment.

Ms O’Sullivan

We are trying to outlaw discrimination on a number of grounds which are specified in the legislation. It is quite feasible that a person could be discriminated against on one of these grounds in relation to their pension as well as their employment. I do not necessarily agree with the Minister's view that one must take one road or the other. It would be possible to insert an element of safeguard in relation to pensions under this Bill so that an issue that related to pensions could be taken to the equality authority.

I ask the Minister to give this matter further consideration. It is not necessarily the case that one has to take either the pensions legislation route or the employment equality legislation route. One can have a level of protection under this legislation without interfering in any way with the pensions legislation.

Mr. O’Donoghue

The problem is that three or four years ago this matter was considered and the Government made a policy decision. On foot of that policy decision legislation has been framed. If I were to go along with Deputy O'Sullivan's amendment it would mean that there would have to be a considerable number of amendments to this legislation - not just the amendment the Deputy has put forward - because it would have consequences throughout the legislation.

Once the policy decision was taken the expertise in this area transferred to the Department of my colleague, the Minister for Social, Community and Family Affairs, Deputy Dermot Ahern. That is where it now lies. Once taken, policy decisions have serious consequences for legislation and other matters. I cannot row back now. It was a finely balanced decision but it would not be feasible, pragmatic or practical to go back now and reverse all that because it would have at least the same amount of consequences as the decision to come this way originally had. It would mean that I would have to row back all the way to the beginning having come three-quarters way down the river. I do not think it would be feasible.

Ms O’Sullivan

I will not proceed with the amendment at this time but I will allow myself to disagree with the Minister to some extent.

Amendment, by leave, withdrawn.

Ms O’Sullivan

I move amendment No. 6:

In page 10, subsection (3), between lines 38 and 39, to insert the following:

"(c) an officer of any other body established by statute shall be deemed to be an employee of that body,".

The purpose of this amendment is not to exclude officers of other bodies other than those already stipulated under this subsection. There are other statutorily established bodies who have officers and, I suggest, those people would be left out of the legislation unless this amendment is included. I would ask the Minister to consider including this. He does specify particular bodies that are included in the legislation but I contend there are others that also have officers.

Mr. O’Donoghue

Deputy O'Sullivan will be aware that this legislation is primarily concerned with the situation of employees. Persons who hold office in an organisation which is established by statute - such as the Ombudsman, for example, or the Director of Consumer Affairs - are not actually employees within the usually accepted meaning of that word. I am not disposed then towards extending the scope of the definition of employee for the purpose of giving coverage under the Bill to this group. I hope that is understood. The legislation is primarily geared towards employees. People who are given positions created by statute would not come within that definition.

Ms O’Sullivan

The Minister has included certain office holders under (a) and (b) of this subsection in relation to, for example, the Garda Síochána, the Defence Forces, the Local Government Act, a harbour authority, a health board, a vocational education committee and so on. Why is it not all inclusive of officers of boards that have been set up under statute?

Mr. O’Donoghue

Deputy O'Sullivan mentions gardaí and so on and they are whole groups of employees within the generally accepted meaning of that term. The Deputy will be aware that it is not and never has been the practice in labour law to extend definitions to include officers. A person who is given a position which is created by statute is an officer within the commonly accepted meaning of that word and could not be said to be an employee in the generally accepted meaning of the definition. Statutory office holders could not be described as employees within the generally accepted meaning of that term.

There is the very important point that labour law in general terms does not really get into the situation of officers, and never has.

Ms O’Sullivan

I will not pursue the amendment at this time but I am not too sure the Minister has answered my question as to why certain office holders are included and others are not.

Mr. O’Donoghue

Let me say that again. There is a difference between being an officer under statute and not being an officer under statute. That is the reason they would not generally be included in labour law. Officers employed under statute would have a different status in the context of labour law. I hope that answers Deputy O'Sullivan's question.

Amendment, by leave, withdrawn.

Section 2, as amended, agreed to.

Sections 3 and 4 agreed to.

Chairman

I welcome the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Treacy.

SECTION 5.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. Treacy)

I move amendment No. 7:

In page 11, subsection (3), line 44, to delete "Deputy" and substitute "deputy".

This is a technical amendment. Section 5 of the Bill deals with repeals and consequential amendments to other statutes. Section 5 (3) amends section 4 of the Industrial Relations Act, 1969 which relates to the deputy chairman of the Labour Court. The references in that Act to the deputy chairman are in lower case; I am tabling this amendment to ensure consistency between both pieces of legislation in respect of this matter.

Amendment agreed to.

Section 5, as amended, agreed to.

SECTION 6.

Chairman

Amendment Nos. 8 and 48 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Ms O’Sullivan

I move amendment No. 8:

In page 12, subsection (2)(d), line 16, after "are" to insert "or are believed to be".

As it stands, a person could be discriminated against on the grounds that someone believed them to be in a certain category when that might not be the case. My amendment is intended to ensure that discrimination would not occur on the basis that an employer or potential employer believed something to be the case which was not. The amendment is intended to cover a loophole which may arise if a person was not actually in the category under which they were being discriminated against.

Ms Fitzgerald

I support Deputy O'Sullivan. The suspicion or belief that a person might fall into one of the categories outlined could easily lead to discriminatory practices. Will the Minister clarify whether that concept can be maintained within the definitions already contained in the Bill?

Mrs. Barnes

I also support the amendment. However, I believe "or are believed to be" could also be quite discriminatory. Is this covered in any way within the Bill?

Mr. Treacy

These amendments seem to include within the scope of the Bill discrimination based on certain characteristics such as ethnic origin, religion or sexual orientation being imputed to a person. The advice available to the Minister is that this amendment is not necessary.

Section 6 (1) of the Bill outlaws discrimination on each of nine grounds, namely, gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. Once discrimination occurs on any of these grounds, it is immaterial whether the person who discriminates does so based on a mistaken belief about, or actual knowledge of, a particular characteristic. The proposed amendment, if accepted, would tend to weaken the legislation by imposing, as it would, an obligation on a complainant to establish prima facie evidence of a suspicion or belief on the part of the discriminator. In these circumstances and, in view of the legal advice available to the Minister about the scope of the Bill as drafted, I hope these amendments will be withdrawn although I appreciate the interest and concern of the Deputies who have tabled them.

Ms O’Sullivan

A person might feel he or she was being discriminated against on the grounds of sexual orientation because someone believed them to be of a certain orientation when they were not. I am not sure that such a person would feel the legislation would be weakened by the insertion of the words "or are believed to be". If a person genuinely feels they are being discriminated against on a particular ground, although that ground may be false, they should be protected by legislation. I cannot think of any other legislation which would protect them in this regard. There are genuine reasons for inserting the words "or are believed to be" into the legislation. Will the Minister explain how it would weaken it?

Mr. Gilmore

These amendments have exposed a very serious loophole in the Bill as drafted. Someone might apply for a job and feel the employer discriminated against him or her on the grounds of physical appearance or attire. A job applicant might feel an employer discriminated against him or her on ethnic grounds if the employer thought the applicant was a member of the travelling community. An applicant might feel he or she was discriminated against because an employer mistakenly believed him or her to be homosexual. If a job applicant were to be discriminated against on any of the grounds I have outlined, they would not, under the Bill, as drafted, have any grounds on which to base an appeal. If they are not members of the travelling community in the first instance, they could not allege discrimination on ethnic grounds. Neither could they claim discrimination on grounds of sexual orientation. The whole problem in these scenarios arises from an employer's perception rather than any status an applicant may hold and it does not seem to me that people would be able to make complaints in these instances.

Mr. Treacy

I hope I can make the position in regard to this matter absolutely clear. These amendments are not necessary because the relevant section of the Bill outlaws discrimination on each of nine counts. Conversely, if the amendments were accepted, we would be saying that the complainant would have to provide prima facie evidence of discrimination. That would weaken a complainant’s case rather than allow them to make an appeal based on the fact they felt they were being discriminated against on any of the nine grounds outlined. It is pointless to put an onus on a complainant to provide de facto, prima facie evidence of discrimination. The law is stronger without these amendments. Once discrimination occurs on any of the nine grounds, it is immaterial whether it occurs based on a mistaken belief about, or actual knowledge of, a particular characteristic. There are nine characteristics. It is important that we maintain the law as strongly as possibly with no seepage in the wording of the legislation.

Ms O’Sullivan

If a person believes he is being discriminated against in employment on the grounds, for example, of being a traveller even though he is not actually a traveller, can he use this legislation?

Mr. Treacy

Of course he can use the legislation but he cannot make a statement claiming to be something he is not. Any of these points can be used in making a case but nobody can claim to be discriminated against for being a traveller if he is not a traveller. Such behaviour would be vexatious and a nuisance.

Ms Cooper-Flynn

If the person doing the discriminating does so in the belief that a person is a traveller is the person being discriminated against protected by the legislation?

Mr. Treacy

Of course he is but if a person makes the case that he is not a traveller even though he is being discriminated against on the basis that he is a traveller, the onus of proof is transferred to the person who is making the allegation.

Ms O’Sullivan

I am trying to find out if the legislation actually covers such a situation. I am not really concerned about where the onus of proof lies. I am concerned that the legislation should cover a person who is being discriminated against on any of these grounds on the basis that an employer believes him to be in one of these categories even if he is not.

Mr. Treacy

The legislation covers them absolutely on all of the nine issues.

Ms Fitzgerald

Even when there is merely a perception or a belief about the person, is he still protected by the legislation?

Mr. Gilmore

I am not entirely clear that is what the Bill provides. It states, "as between any two persons". The discriminatory grounds are that one is a member of the travelling community and the other is not. If there are two applicants for a job and neither is a member of the travelling community but the employer thinks that one of them is and does not give him the job on those grounds, he cannot take a case under this legislation because the grounds for discrimination are not fulfilled.

Ms Cooper-Flynn

My understanding of the Bill is that whether or not I am a member of the travelling community, if an employer discriminates against me because he believes I am, I am entitled to take a case. If an employer discriminated against me because he thought, for example, that I was gay I should be protected on one of the nine grounds.

Mrs. Barnes

This is something we must tease out. Deputy Cooper-Flynn's example might be more prevalent than others. If a person is discriminated against by someone who believes he is gay, how can that person take a case within the category of sexual orientation as described in the Bill when he is not of that sexual orientation?

Chairman

If I am denied a job because I look like a traveller or look as if I am gay, I am unlikely to claim discrimination if I am going around looking like it. What sort of cases might be involved?

Ms Cooper-Flynn

If you learned afterwards, Chairman, that an employer had been under the impression that you were gay, whether that was the case or not, you should be protected by the legislation.

Mr. Gilmore

The problem is that the legislation refers to discrimination between two people one of whom falls into a particular category and one of whom does not. If neither belongs to one of the nine categories there is no basis for claiming discrimination. If an employer believes an applicant to be a traveller, irrespective of whether the applicant is or is not a traveller, and discrimination occurs on that ground it should be illegal. The text of the Bill however states that the ground for discrimination is the fact that one person is a traveller and another is not. If that fact does not exist in the first place there are no grounds for claiming discrimination under the legislation.

Ms Hanafin

The discrimination would have been made on the basis of that fact.

Chairman

Let us assume that two people apply for a job. One of them hears afterwards that he did not get the job because the employer thought he was gay. He then takes a case under this legislation and in the course of the proceedings is asked if he is gay. He answers that he is not. This person, surely, is not covered by the legislation.

Ms Cooper-Flynn

I do not think that is relevant.

Ms O’Sullivan

The point is the basis on which a person is being discriminated against. In most cases an employer will not know definitely whether an applicant is gay or a traveller or a member of one of the nine categories. We want to ensure that the legislation will protect a person against an employer who believes him to be in a particular category and discriminates against him as a result of that belief.

Chairman

Maybe the Minister would look at this question before Report Stage.

Mr. Treacy

We can certainly look at this again. The word "grounds" is very important in this Bill. The legislation is concerned with grounds and not facts. What is important is the grounds on which a person is discriminated against. The legal advice is that the Bill is drafted to allow both the actual and imported characteristics to come within the scope of the Bill. We can look at the Bill again and if clarification is needed it will be clarified.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 9, 10, 44, 45 and 49 are related and may be discussed together by agreement.

Ms Fitzgerald

I move amendment No. 9:

In page 12, subsection (2)(i), line 29, to delete "traveller community" and substitute "Traveller Community".

On a day when we are discussing equality legislation, I very much regret the comments reported this morning in relation to travellers. The comments by a Fine Gael councillor do not reflect Fine Gael policy and I dissociate myself and the party from those remarks. They were extremely inappropriate.

This amendment was discussed in the Seanad. The task force on the traveller community suggested that this practice be adopted in legislation. I note the Minister in his response in the Seanad said he could not do this because it would set a precedent. It seems appropriate that such a precedent should be set in the legislation.

Mr. Treacy

These related amendments are textual in nature. Late last year the National Economic and Social Forum published its opinion on the equality provisions in Partnership 2000. The forum took the opportunity in that publication to ask that consideration be given to changing the term "travelling community", which was included in the 1986 Bill, to "traveller community" which is a more commonly used term. I acceded to this request which resulted in the terminology in the Bill. The use of a lower case "t" for traveller is entirely consistent with other legislation, including the Housing Act, 1988, the Unfair Dismissals (Amendment) Act, 1993, and the Housing (Traveller Accommodation) Bill, 1998. Accordingly, I would be grateful if Members accepted the recommendation of the National Economic and Social Forum and the traditional manner in which this has been dealt with. I ask that the amendment be withdrawn.

Mrs. Barnes

I totally condemn the reference made in a most unacceptable and discriminatory manner by a Fine Gael councillor in Mayo. It demonstrates the type of protection which we must build in to the Bill for all categories and certainly for the traveller community. The Bill deals specifically with groups of people who are and have been discriminated against and because the traveller community has indicated its preference, we must give it due weight and consideration. Travellers are making the recommendation and feel it is necessary in the context of acknowledging their status in the Bill. Because of the importance of the Bill and the fundamental issues of discrimination and prejudice which it will hopefully end, we should be very aware of what comes from the groups themselves. Also, this Bill should not conform totally with what has traditionally been used in the past or by other fora. I strongly recommend that if be considered in these contexts. We are breaking new ground and setting up a very definite acknowledgment of groups such as this. We must carefully take into consideration the importance of such groups, what they wish for and how they wish to be described.

Mr. Treacy

I have much sympathy with what has been said. The advice is that irrespective of what the legislators say, the parliamentary drafts people do not like what we are proposing and claim that it is not legislative convention. The legislative convention is to minimise the use of upper case letters except in relation to a relatively small number of terms where historical precedent dictates practice. While use of a capital "t" in this case might be indicated in a report or some other non-legislative document, it is not regarded as appropriate in a Bill or Act of the Oireachtas.

If a Minister delivers a speech in Dáil Éireann using upper case letters, the convention seems to be that when written in the Official Report they are put in lower case. I found this exceptional. Through language engineering and use we should be able to highlight things better as we evolve and give them a focus. There is much merit in what has been said. While I am not the Minister for Justice, Equality and Law Reform and dare not presume to take unto myself his powers without a seal of office, I am prepared to ask the Minister to have another look at this matter for Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 10 not moved.

Chairman

Amendments Nos. 11 to 15, inclusive, are related and may be discussed together by agreement.

Ms O’Sullivan

I move amendment No. 11:

In page 12, subsection (2)(i), line 31, to delete "ground')." and substitute the following:

"ground'),

and shall be taken to include discrimination on a ground which presently exists, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.".

The amendments which have been grouped together are very important. They are relevant in the context of the Northern Ireland Agreement on which a referendum is being held next week. There is a specific commitment in the Agreement to introduce employment equality and equal status legislation. There is also a commitment in Northern Ireland to introduce a bill of rights. It is somewhat incongruous that as part of our obligation under the Agreement we are not including the grounds of political opinion in the legislation. Politics is central to the question of equality of rights in Northern Ireland in the context of people who hold different political opinions not being discriminated against in employment or in recruitment to employment. This area should be revisited in the context of the Northern Ireland Agreement. We should be equally cognisant of the importance in our jurisdiction of ensuring there is no discrimination on the basis of expression of political opinion.

The other areas covered are equally important. The ground of trade union membership was debated widely in the Seanad, particularly in the context of the Ryanair dispute. This issue is crucial in the context of the number of low paid employees being denied membership of a trade union in their place of employment. In the context of social partnership it is very important that this area be included in the legislation.

I support my colleagues who have tabled a further amendment relating to the grounds of disadvantage. People can be discriminated against in relation to the procurement of employment on the basis, for example, of their address. This type of discrimination occurs every day and I fully support the relevant amendment.

All the grounds included in the amendments are very practical and ones on which we as legislators should take a position. This Bill specifically concerns safeguarding people against discrimination in employment. The grounds outlined are valid, important and practical in the context of people's everyday experiences.

Ms Fitzgerald

It is important these grounds are included. The Fair Employment Northern Ireland Act, 1971, updated and expanded in 1989, covers discrimination on the grounds of religious belief and political opinion. It is important that such grounds be included in the legislation and I would like to hear the reasons for not including them. This issue is relevant, particularly in the current climate, the type of legislation which is marked in the Belfast Agreement and the aspirations included in it in the context of treating people of different political opinions and aspirations with respect. It is important, given the changing political landscape and the cross Border frameworks being established, that legislation ensures people cannot be discriminated against because of their particular political opinions. It would be reassuring for many to see this built into our legislation. It is the right way to go, particularly at this time.

As regards disadvantage, it is clear the Celtic tiger does not reach everyone and that there are huge issues relating to social exclusion. We should build into the legislation a framework which protects those who are disadvantaged from further discrimination when seeking employment. This amendment addresses that issue. Many people have been excluded from employment because they are perceived to be from a particular class or address. Protection from such discrimination should be built into the legislation.

Mr. Gilmore

I support these amendments and agree with what has been said. During the Second Stage debate, I was extremely critical of the Bill on the grounds that in many respects it addressed discrimination everywhere except where it is happening in employment. Discrimination in employment happens in a subtle way. There are few cases where there is straightforward discrimination on marital grounds or on the other grounds referred to in the Bill.

Practical discrimination in employment happens every week of the year. Some of the cases raised here throw light on that. It is a fact that if a person comes from a certain part of this or other cities and the address appears on the application form, they will not be called for interview. It is also the case that if a person is known, for example, to be a member of a trade union or to be active in trade unions that they will be automatically discriminated against in some employments and industries and they will not be admitted to employment because the employer believes they are trouble. The corollary to that which needs to be considered is the condition in some employments that a person must be a member of a trade union. If trade union membership is one of the grounds for discrimination, then non-membership of a trade union also comes into it.

Political opinion is another area of discrimination. There is a strongly held perception that if a person is a member or a supporter of a political party, particularly if it is in power, their prospects of being placed in State employment or in employment in a State agency or semi-State company are greatly enhanced. There is considerable anecdotal evidence to support that view. This is a form of discrimination. There are many people, for example, who, when jobs come up in certain areas of the State service or in certain semi-State companies, will not apply for them because it is their view that the job is spoken for or that a certain person will place somebody in it. There is a widespread belief that there is active discrimination in areas of employment which are based on political allegiance. We could discuss all day whether that is a fact, but it should be illegal and it should be made clear in our legislation that political allegiance is not a ground for someone getting or not getting a job.

The amendments we are discussing deal with areas of discrimination which, in practice, are far more widespread than some of the areas of discrimination already provided for in the Bill. The Minister should give serious consideration to extending the grounds of discrimination to include the areas proposed.

Ms Cooper-Flynn

Does that apply to programme managers as well?

Mr. Gilmore

I do not know to what the Deputy is referring.

Ms Cooper-Flynn

It was a general question.

Mr. Gilmore

I can give the Deputy a practical answer. The adviser I employed when I was Minister of State at the Department of the Marine was not a member of my political party but of a different one.

Chairman

I clearly remember a former Deputy, Mr. John O'Leary, making a strong speech at one of our parliamentary party meetings which contradicts what the Deputy said. He said that in many cases it was a huge disadvantage to be identified with certain political parties because if a person got the job, people said it was because they supported Fianna Fáil or Fine Gael. We must be careful that people are not disadvantaged.

Many people who live in Dublin 4 are frustrated because of the assumption that anyone who lives there has plenty of money. However, nothing could be further from the truth in many areas of Dublin 4. These people are discriminated against on the grounds that they must be rich because they come from that area.

Mr. Treacy

The longer one lives, the more one learns. I have been 16 years in political life and I did not know that certain jobs were fixed or were political appointments and that people would not apply for them. I am shocked to hear that and it should not be that way. It would be a terrible tragedy if people who are involved with political parties were discriminated against for any position as a result of such involvement. It is to their credit that they are involved in politics because it shows a commitment to their nation by giving voluntary service to the evolution of politics and the democratic process. There is a glaring example within politics where a person holds a strong political position and a prominent public position, but nobody has ever raised that question and the person has done an excellent job in both areas. There are certain examples where one can see the merit of employing good people who are active in politics.

These amendments propose to add new discriminatory grounds to those already provided in the Bill. Amendments tabled by the Deputies which define trade union membership, political opinion and social, educational, income or other disadvantage are some of a range of options presented here. Progress has been achieved on this Bill because the scope, although broad, has remained focused. The focus in this Bill has been to give effect to the Government's commitment to enact legislation that would outlaw discrimination on the grounds of sex, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the traveller community.

The former Minister for Equality and Law Reform, Mr. Mervyn Taylor, was pressed to accept a gamut of analogous amendments when the Employment Equality Bill, 1996, was before the Oireachtas. In response to previous proposals to broaden the scope of the Bill, a new subsection (4) was added to the Bill. This subsection commits the Minister to review the operation of the Bill within two years of the date of coming into operation. Accordingly, the Minister regards the principles for changes to the Bill contained in these amendments as matters for another time. Deputies will be aware from its complexity that additions to the scope of the Bill would involve considerably more drafting work on policy development than the simple amendment of section 6 as proposed in these amendments. For all of these reasons I hope the Deputies will understand that it is not practicable to accept the proposed amendments.

Mrs. Barnes

I find the Minister's response disappointing in so far as there has been so much time, effort and commitment put into this Bill. It has been a long-running saga. It is very important, therefore, for us to get it right now instead of waiting for fall out and having a review within two years. I will not take up the committee's time in reiterating what has already been said, except to say that the disadvantage faced with regard to address is absolutely fundamental as there is no one in this room who has not heard of the shame and embarrassment which people living in certain areas have endured when they could not even put their own address on a letter of application and were forced to use the address of a friend or relative to get a hearing. We are talking about facing up to discrimination. Despite the drafting difficulties, we have to take on the most fundamental discriminations and that is one of them.

The political opinion ground should not present any problem, particularly in the light of the comments made by Deputies O'Sullivan and Fitzgerald regarding the Belfast Agreement. The whole point of endorsing and implementing the Agreement will be to relate as closely as possible to the legislation with regard to equality of rights in particular on both sides. We would be making a statement politically about our endorsement commitment in an area which has been more openly discriminatory in Northern Ireland and more hidden here. We should not ignore it. It should not present any difficulties in the drafting area and it is appropriate at this time.

Ms O’Sullivan

The Minister's response is that this Bill is effective because it is focused. That is a fair point but I do not see how adding these grounds would affect the focus of what is there already. That argument does not stand in relation to these points.

I reiterate what Deputy Barnes said about political opinion grounds. I ask the Minister to reconsider. Clearly we are in a position following the Belfast Agreement which we were not when this legislation was originally introduced. Including the political opinion ground would be concurrent with the spirit of the Agreement and with the letter of it regarding what will be put into practice in Northern Ireland. We should have similar safeguards in this jurisdiction. I also feel that the Minister should reconsider the trade union area.

Mr. Treacy

There is much merit in what the Deputies say but it is important that they do not lose sight of the ground breaking nature of this legislation.

It prohibits, for the first time in Irish legislation, discrimination in employment on nine different grounds. It will give Ireland one of the most modern employment equality codes in Europe. Proposals to add further grounds now would necessitate a review of the legislation which would take months, if not years, as it would have to go back to Government for further review. I suggest that we put this Bill on the Statute Book before considering proposals for new discriminatory grounds.

Democracy gives the parliament of the State the power to elect a Government and the Constitution gives the Government particular powers of execution. If we were to go back on the political grounds about which the Deputies are talking, there would have to be certain exclusions. The Taoiseach and Ministers of the day would have to make certain appointments that might be regarded as political, and why not? That is politics. You have to be certain that a person whom you appoint will be positive in supporting what you want to achieve. There are exclusions which would come into that which would necessitate major changes which would have to be reviewed. On that basis I ask the Deputies not to push the amendments.

We have been trying to formulate this legislation for five years. It is innovative and will give us a strong position pertaining to employment equality as a State and within the European Union. If we can proceed with this we will be making a major statement about equality in employment for the future.

Chairman

Considering the problem which exists with social exclusion and the extra effort someone from one of these areas has to make to get into a position where they can apply for a job, and that people are discriminated against because of their address, this matter is reasonably simple and could be looked at on Report Stage. It is a problem which would not be that difficult to examine.

Mr. Treacy

It would be a tragedy if anyone was discriminated against by virtue of their address.

Mrs. Barnes

They are.

Mr. Treacy

I accept what the Deputies say and on that basis I will ask the Minister to have another look at this and see if he can do something about this issue.

Mrs. Barnes

I am reminded of the first Employment Equality Act in which there were difficulties about exclusions. People were claiming discrimination where there was obviously none. With regard to the political opinion ground, the wording might be 'where the characteristics of the job demanded a certain amount of preference'. A Minister would not be forced to take on a programme manager from another party who was out to sabotage him or her.

Mr. Treacy

A re-engineering.

Amendment, by leave, withdrawn.

Amendment No. 12 not moved.

Ms Fitzgerald

I move amendment No. 13:

In page 12, subsection (2), between lines 31 and 32, to insert the following;

"(j) that one holds a different political opinion from the other,

(k) in this Act, reference to a person's religious belief, political opinion or any other discriminatory grounds includes references to that person's supposed religious belief or absence thereof, political opinion or absence thereof, or any other characteristic which appears to bring that person within any of the categories within the discrimination ground.".

Amendment put.

The Select Committee divided: Tá, 7; Níl, 8.

Tá

• Barnes, Monica.
• Boylan, Andrew.
• Dukes, Alan.
• Fitzgerald, Frances.
• Gilmore, Éamon.
• McCormack, Padraig.
• O’Sullivan, Jan.

Níl

• Ardagh, Seán.
• Cooper-Flynn, Beverley.
• Hanafin, Mary.
• McGuinness, John.
• O’Flynn, Noel.
• Ryan, Eoin.
• Treacy, Noel.
• Wright, GV.

Ms O’Sullivan

I move amendment No. 15:

In page 12, subsection (2), between lines 31 and 32, to insert the following:

"(j) that one is a member of a trade union and the other is not ('the trade union membership ground').".

Amendment put.

The Select Committee divided: Tá, 7; Níl, 8.

Tá

• Barnes, Monica.
• Boylan, Andrew.
• Dukes, Alan.
• Fitzgerald, Frances.
• Gilmore, Éamon.
• McCormack, Padraig.
• O’Sullivan, Jan.

Níl

• Ardagh, Seán.
• Cooper-Flynn, Beverley.
• Hanafin, Mary.
• McGuinness, John.
• O’Flynn, Noel.
• Ryan, Eoin.
• Treacy, Noel.
• Wright, GV.

Sitting suspended at 1 p.m. and resumed at2 p.m.

Chairman

There is a typing error in amendment No. 16. It should read "In page 12, subsection (3), line 33, to delete paragraph (a)." Amendments Nos. 53 and 54 are related to amendment No. 16 and all may be discussed together. Is that agreed? Agreed.

Mr. Gilmore

I move amendment No. 16:

In page 12, subsection (3), line 33, to delete paragraph (a).

These three amendments deal with the exemptions proposed as regards discrimination on grounds of age. On the face of it, the Bill provides that discrimination on grounds of age should be illegal. There are, however, a number of exemptions to this ground. The exemption in section 6(3)(a) states that a person who has attained the age of 65 years is exempted - in other words, it will be legal to discriminate in employment against somebody who is 65 years or over.

Section 34(3) and (5), provides that it will not be unlawful to discriminate on the age or disability grounds in circumstances where it is shown there is clear actuarial or other evidence that significantly increased costs would result if the discrimination were not permitted in these circumstances. Section 34(5) states:

. . . it shall not constitute discrimination on the age ground to set, in relation to any job, a maximum age for recruitment which takes account of-

(a) any cost or period of time involved in training a recruit to a standard at which the recruit will be effective in that job, and

(b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.

This means that an employer may still set a maximum age for recruitment and may justify it on the grounds under section 34(3) that there are actuarial reasons. In other words, presumably the employee would not build up sufficient pension entitlement and there would be problems with the pension scheme in recruiting the employee. Under section 34(5), the employer could justify discrimination on the grounds that it would take too long to train the prospective employee or the employee will not be in employment for a sufficient period prior to retirement.

These are fairly open-ended methods by which an employer may get round age discrimination. A problem which is increasingly occurring in employment is that, although there is no problem up to the mid 40s, from the mid 40s on, people are being increasingly discriminated against in employment. Employers are setting upper age limits for the recruitment of people and are not, in practice, employing people as they move on in years. In manual employment, in particular, it is regularly the case that people, particularly if they are male and over 40 years, are virtually becoming unemployable once they lose their first employment. Employers are becoming increasingly resistant to the idea of bringing them into the workforce.

This pattern is likely to continue and worsen as changes continue in the nature of work given the new technology and the information society of which we are becoming a part. There is scope for employers to use section 34(5) to say it will cost too much to train somebody or that they will not be in employment for a sufficient period of time. There is enormous scope for employers to get around the age bar.

I raised a case some months ago of a job in the public service where an age limit of 50 years was quoted. In fairness to the Minister, he intervened and the age limit was lifted. However, it became fairly apparent that there is a working assumption in the Civil Service, the public service generally and in Government, that there will be some type of a cut off for recruitment at 55 years, thus discriminating against people who are older.

Much of the age discrimination - I refer in particular to compulsory retirement at 65 years - was based on the assumption that people started their working lives in their early 20s, worked in the same job for 40 years until they reached 65 years and retired on a pension. That assumption is gone and the nature of work has changed completely. The pattern of work and a person's working life has changed. A situation may arise where people will have to change jobs and careers several times in the course of their employment.

Employers continually tell us there must be flexibility in employment and that workers must be flexible and change employment. That is fine up to a point and we all understand why it is economically necessary. However, the corollary of that is that there will have to be protection for people moving on in years so that people can change jobs and will not be discriminated against at 55 or 60 years if they apply for posts having lost their previous jobs.

There is no point having a provision in law which says we cannot discriminate on grounds of age while saying it is all right to discriminateif the employer can say it will cost too much to train a person and will cost too much to the pension scheme. We should be clear that discrimination on grounds of age should not be permitted.

Mr. O’Donoghue

What Deputy Gilmore said was interesting but the difficulty is that if we say there will be no discrimination against people over the age of 65 years in the future, we will have to face up to the fact it will have a serious effect on the labour market. I believe Deputy Gilmore would accept that. A number of corollaries issues would have to be addressed. We would have to question whether a person over the age of 65 years should be entitled to a contributory pension, for example. If we decide affirmatively and if we do not give a contributory pension to people between the ages of 55 and 65 years, could they say they were being discriminated against? They might be in a position to say that.

The next question which would arise would be for how long after reaching 65 years should we ensure people receive the protection of the legislation. The demographics may change in the future to the extent that the labour market will demand a change of the character Deputy Gilmore advocated. It could not be seriously argued at this point that the demographics are such that we should allow people over the age of 65 years to receive the protection of the Employment Equality Bill.

People in the labour market see themselves retiring at the age of 65 years. For my part, if I reach the age of 65, I assure Members I will not seek to stay in the marketplace and will, I hope, retire gracefully. Obviously, that will give a considerable amount of pleasure to many people.

Mr. Gilmore

I had hoped the Minister might consider retirement at an earlier age. My amendment was not intended to encourage him to go on and on. The Minister is wrong that most people assume they will retire at 65 years. An increasing number of people contemplate retiring from full-time work and the level of commitment which they give to their work, at an earlier age but would like the option to continue, in many cases, at a reduced level of work for perhaps a longer period. We need to build into our laws the flexibility which will allow for that. The Minister spoke about the labour market which is changing dramatically. However, one cannot say we should have a flexible labour market and mean only that workers should be flexible. We will have to have legislation which will allow for that flexibility and a different pattern of work.

On the issue of 65 years, compulsory retirement and so on, I appreciate this is a fundamental issue which we will not resolve today. However, I would like the Minister to include the question of retirement age in the two year review promised under this legislation and to consider it in the context of the changing workplace.

I feel strongly about amendments No. 53 and 54. As it stands, all an employer who wants to discriminate and not employ somebody over 50 or 55 years has to do under section 34(3) and (5) is say it will cost too much to train him. That is an extremely dangerous situation. We are seeing a bias being exercised by many employers, particularly in the new industries, towards young graduates straight out of third level education with the most up to date qualifications. These graduates are instantly employable and good luck to them. However, there are people who, for example, lose their jobs and need to retrain. I see nothing wrong with a requirement that an employer must provide training or that time must be provided to train somebody. It is in the nature of modern employment that there will be training costs unless we constantly recruit people who come straight on or recently on to the labour market with the most recent qualifications.

Look at what is happening in male manual employment, for example. If somebody has been working in a factory for 20 or 25 years and loses his job in his mid 40s, he is virtually blocked out of the labour market. The situation is grossly unfair in that people are being written out of employment as early as their mid 40s. They are past it and employers will not touch them. This provision will allow that type of discrimination to continue.

There has been much talk about the need for some degree of positive discrimination. We will have to encourage employers to discriminate in favour of people who require retraining and who received their initial training or qualifications a generation ago, particularly given the changing requirements of the workplace. That is a fair return to expect from employers who, for good economic reasons, expect the workforce to be flexible. If we expect employees to be flexible and accept a regime throughout their working lives in which their jobs and careers may change, employers should be expected to provide the training and opportunities which will enable people to get back into the labour force at a later stage of their lives.

The Chairman asked me earlier if I intended to call votes on any of the amendments I tabled. Although we are a long way off section 34(3) and (5), I ask the Minister to respond positively. If these subsections remain unchanged, they will be a licence for continuing discrimination on grounds of age. I feel strongly enough about them to press them to a vote, if the Minister is not inclined to move some way on them.

Ms Fitzgerald

Deputy Gilmore's suggestion that the issue be looked at in the context of the review is important. He makes a compelling case about a changing labour market, the changing expectations of people and the opportunities people will have throughout their lifetime. We have strong evidence that people now move between several careers and there is more flexibility in employment. It is important that the legislation is available to people over 65 years, who are currently excluded, if it is relevant. All else being equal, it would be dreadful if discrimination was exercised on the age ground when it is inappropriate for any other reason. It is an issue we should consider. We live in a society where careers are changing and we are conscious of what were ageist attitudes where there were ridiculous age limits, most of which, if not all, have been removed. Changing the legislation to reflect that reality is important.

Ms O’Sullivan

I support Deputy Gilmore in what he is trying to achieve. I would not like to think this legislation could be quoted by employers as a reason for discriminating against people on the grounds of age.

Looking particularly at the latter two amendments Deputy Gilmore proposes, those subsections give some grounds for concern. Certainly, in the case which the Deputy outlined there is a great deal of this kind of discrimination. It is difficult in what is described as a flexible employment market for people who have gone beyond a certain age, to remain in the workplace. In this Bill it would be wrong for us to give succour to that kind of practice among employers.

Mr. O’Donoghue

As the committee will be aware, section 34(3) prohibits discrimination on the grounds of age and disability unless there is clear actuarial or other similarly based evidence to indicate that the employer would incur significant increased costs under the circumstances. While the Bill does not deal with pensions, where actuarial factors are particularly relevant, it covers death in service or permanent health measures where actuarial evidence arises, especially in the context of age and health characteristics. The employer would be obliged to produce appropriate evidence to justify any discriminatory action on his or her part which would be examined ultimately by the Director of Equality Investigations in the context of an equality case under the Bill.

With regard to amendment No. 54, section 34(5) allows an employer to set a maximum recruitment age in certain circumstances. In setting these ages an employer must, in accordance with the subsection, take account of the time and cost of training an employee and the need to ensure a reasonable period of effective service prior to retirement age. Any maximum retirement age set by an employer can, in the context of an equality case under the Bill, be examined by the Director of Equality Investigations to ensure that the age limit set meets the criteria established.

We must be careful to ensure that, in making amendments we do not discriminate against employers. If we discriminate against employers, the knock on effect is that we reduce opportunities for employees. A careful balance must we struck. It is important to point out that the demographics in this country are such at present that I do not foresee opportunities of the kind being envisaged by Deputies occurring for about 15 to 20 years. We are way behind the rest of Europe in terms of the demographics. It would not be appropriate at this point to take the road being suggested by Deputy Gilmore.

It must be realised that in any society one must take certain decisions regarding employment. If the opportunities are limited, one must decide what will be the optimum ages for opportunities. In Ireland's case, the cut off point is 65. If we are to state that that is no longer the case and it will be discriminatory to ask a person to retire or not to give a person an opportunity because they are 65 or older, then it must be recognised that there will be a ripple effect - the displacement of a younger worker by virtue of the fact that the opportunity will not be there for him or her. It is not as if there were an abundance of opportunities or as if there was full employment. I wish that were the case but it is not. There is a settled pattern at present which is broadly accepted.

Any person 65 or over who obtains employment obviously enjoys the protection of the legislation in so far as the nine grounds are concerned. Therefore, all we are saying here is that the discrimination on the grounds that the person is 65 or over would not be described as discriminatory within the meaning of the legislation.

It may well be the case that in future years what is envisaged by Deputies will occur and there is provision in the legislation for reviews to take place. The reason there is such a provision is because things change in labour law. Sometimes they can change quite quickly. It is important that there be an amount of flexibility which would allow for these reviews.

In the circumstances, I do not propose to accept the amendments because I do not believe I have room to be dogmatic in respect of any of them.

Mr. Gilmore

On the question of the age of 65, the Minister is wrong when he states that if somebody obtains employment at 65 or over, he is covered by the Bill. He is not. Subsection 3(a) excludes somebody who is over 65 from the protection of the Bill on the age ground. Admittedly, such a person is covered under the other grounds.

Mr. O’Donoghue

That is what I am saying.

Mr. Gilmore

I may have misunderstood. I ask that the question relating to persons aged 65 and over is looked at in the context of the two year review. Let us take, for example, people who are employed in many public service jobs. As a result of recruitment embargoes which have been in place over the past 15 years or so, many people were unable to get a permanent job in the public service until they were well into their 30s even though they might have been working in that sector. For instance, there are many people who were teaching in a temporary capacity because no full-time jobs were created due to recruitment embargoes. Such people did not join the pension scheme until they were 35. They will never qualify for a full pension and they will be expected to retire automatically at the age of 65. There are other similar examples. All I am saying is that the compulsory retirement age issue and the exclusion of people over 65 in this Bill needs to be reconsidered. That should be reconsidered at the two year review stage.

On section 34(3), the Minister spoke of the actuarial costs. One does not need to be an actuary to conclude that the actuarial costs of death in service, etc., and the assumptions which are made in calculating them for somebody who is 55, for example, will be significantly higher than for somebody who is 25 or 35. Therefore, under subsection (3), an employer has an excuse to hire the 35 year old rather than the 55 year old. This is discrimination on the grounds of age and it is protected by the provision governing actuarial costs.

Second, subsection (5) deals with the cost of training and the setting of maximum recruitment ages. There are few jobs now which do not require some training. It would not be difficult to construct a reason for discrimination on the grounds of age. What is the intention with regard to the question of recruitment ages, for example, for the Civil Service or the public service? Is it the intention of the Government to have a maximum recruitment age of 55 for the public service when the Bill is enacted and to justify that using the two subsections to which I have referred? I expect the Government and the Department of Finance have addressed the issue and I believe they have adopted a position on it. After the Bill is enacted, will advertisements for jobs in the public service state that, if a person is older than 55, he or she cannot apply? That is discrimination in anyone's language and should not be permitted.

It is nonsense to pass legislation banning discrimination on the grounds of age when it allows the public service to advertise jobs for which those over 55 cannot apply or allows a private employer to discriminate on the grounds of age because training costs are supposedly too high. Either discrimination on the grounds of age is to be banned or permitted. The problem is that the Bill will allow it continue. There is a declaration in section 6 that there will be no discrimination on the grounds of age, but only if the people in question are between the ages of 18 and 65, something about which there may or may not be a court case. However, section 34 leaves the gate wide open for discrimination on the grounds of age. What will be the position as regards the public service when this Bill is enacted? The actuarial costs and the implications for superannuation are known. Will there be an upper age limit for recruitment to different grades in the public service?

Mr. O’Donoghue

I spoke earlier about the review and the mechanism for it. There would be a review of relevant matters in the context of the operation of the legislation over a two year period. Unless there is a miracle, the demographics will not change to such an extent that there will be the luxury or liberty of ignoring the 65 year retirement age.

As regards the criteria for recruitment to the public sector, it is not possible to state categorically what the age limit will be. Each Department will have to consider what it should be in the context of the legislation. Varying degrees of expertise and tasks are involved and the circumstances would not be the same in any given position. I envisage the Departments and relevant employers examining the situation, observing the policy direction and making a decision appropriate to the employment concerned. It is not possible to state categorically that there will be a blanket age limit across the public sector because there is a difference in the tasks performed.

Deputy Gilmore made considerable play on the fact that he believes that clear actuarial evidence would ensure a person of a certain age would be discriminated against on the basis that it does not take any actuary to know that employing an older person is a more expensive exercise in the long-term. That is a strong argument but I counter it by saying that the employer in question could perhaps say that the individual would not receive a pension if admitted to the employment in question. That is allowable. What is not allowable and it is taking too broad an interpretation to say it would happen is that access to the employment would be restricted. It would be open to the employer to tell the prospective employee that, while age was against him, he would employ him, although pension was something with which he could not assist him. In that event, it would be open to the employee to decide whether he was willing to accept employment on those terms. That is not ideal but Deputy Gilmore's interpretation of the subsection is too wide. It comes within the limits I outlined.

I accept that there are employers who will be in a position to argue validly that, on clear actuarial evidence, the expense involved circumscribes their discretion. There is a difference between employing and training an engineer at a mechanical works and employing someone to clean up in a restaurant. The levels of training involved are clearly different. Not all positions are the same. I agree that it would be a tremendous step forward if there was no need for recognised age limits for retirement. If we are to provide opportunities for young people coming into the labour market we must be pragmatic. There is no alternative. We have to recognise that there are optimum periods is peoples' lives where they are more suited to employment. Demographics may change. If they do I have little doubt that it will be possible to make the changes required. Deputy Gilmore seeks an undertaking that we look at the age stipulation in two years. I do not envisage things changing that quickly but the review will take place in the context of the operation of the legislation and any issues which needs to be addressed will be addressed at the conclusion of the period.

Mrs. Barnes

We must consider that this Bill will be a foundation for future employment and we must the whole area of pensions, flexibility in employment and people, especially women, returning to work. There are skills shortages in some areas in which flexibility would allow people at least an equal opportunity to apply for posts and make a contribution.

Within the Social Affairs Commission and the European Parliament, indirect discrimination has already been recognised by the fact that women sometimes leave the workplace for long periods. They return with a large amount of expertise and experience which can be lost if there is a cut-off point, particularly if it is actuarially based. There will be a certain amount of flexibility and changing work and pensions structures. There will be private and supplementary pensions. This Bill does not take into consideration the vast changes which are already happening and will happen rapidly. Technology has already changed our perception of work.

A cut-off point represents not just a lack of opportunity. It could cut off the contribution people could make at that level and at that age. We are working on traditional methods and definitions of pensions and peoples' worklives. People will opt in and out of work more easily and more flexibly. This cut-off point removes flexibility to allow us to expand and increase employment opportunities. The Minister should keep an open mind. The future flexibility of work will change our traditional attitude to pensions and working life.

Mr. O’Donoghue

There are no cases which directly impinge on the issues raised by Deputy Barnes at EC level. The indirect discrimination ground is what the Deputy is concerned about. This ground relating to gender is covered in section 22. The language applied in getting that message across in section 22 is akin to Cicero at his most prophetic. However, it is still there and while the terminology may be complex, the indirect discrimination ground is covered.

Mr. Gilmore

It is clear that the Minister will not make any concession on these amendments. It is becoming increasingly clear that this Bill will not end discrimination in employment on grounds of age. There needs to be some honesty with the public, particularly those at work, about what this Bill will or will not do. There is no point telling people that legislation is being passed in the Oireachtas which will end discrimination on the grounds of age when it manifestly will not do so. It would be more honest if the Minister said one cannot end discrimination on the grounds of age because employers will not like it or it would discriminate against employers or make life difficult for them. The Minister came close to saying this. That is the bottom line and that is clearly the Government's line. I will not press amendment No. 16 because we are just opening debate on that issue. However, I will press the two amendments on section 4.

Amendment No. 16, by leave, withdrawn.

Mr. O’Donoghue

Unfortunately, Chairman, I have to go to the Seanad. I apologise for this but my colleague, Deputy Treacy, will take the legislation from here.

Ms Fitzgerald

I move amendment No. 17:

In page 12, subsection (4), line 38, after "Act" to insert "and hold a public consultative forum as a part of that review with relevant agencies and groups".

This is a straightforward amendment. We have already had a great deal of discussion about the review of the operation of the Act and it is important that there should be such a review. So much will be covered in that review that I am worried about how much will be in it. A public consultation process should be initiated with relevant agencies and groups as part of it. This is an attempt to include those whom the Bill will affect in the two years of its operation.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. Treacy)

This proposal would be interesting from the Minister's point of view for inclusion in the Bill were it not for other provisions in Part V. Part V establishes the new Equality Authority. One of the central tasks of the authority as stipulated in section 39(c) is to keep the legislation under review once enacted and to make proposals to the Minister for amendment where appropriate. This provision confers on the authority an important statutory role with regard to the review of the legislation and the specific time commitment in section 6(4).

The authority will be well placed to advise the Minister as to the scope and nature of the review because of its work in combating discrimination and the composition of its membership. The authority will comprise employers and trade union interests, members with knowledge and experience of social and equality issues as well as persons representative of the various discriminatory grounds.

In view of the existing strong statutory framework for legislative review in the Bill, the Minister is not disposed towards accepting this amendment for the provision of additional statutory arrangements for this purpose.

Mrs. Barnes

We all welcome the expansion of the Equality Authority and hope it will be adequately resourced to enable it to do the considerable additional work. Its resources are put under severe pressure by its current workload. The new board will comprise representatives of groups included under the various discriminatory grounds outlined in the Bill.

Surely it would add to the quality and work programme of the new authority if there was a consultative forum availabile to agencies and groups which, for practical reasons, would not be represented on the board. Such groups which come immediately to mind are guidance counsellors, representatives of the unemployed, and people either on the periphery of the workforce or who have valuable experience which they could share. A consultative forum would give them a hearing which the Equality Authority, with the best will in the world, could not. There is no reason the forum could not run in tandem with the authority or have a certain lifetime. Perhaps the Equality Authority has plans to initiate a consultative form but, if the proposal was included in the Bill, it would add rather than detract from it.

Ms Fitzgerald

The Equality Authority's information, experience and reviews would obviously play an important and key part in the public consultative process. Building a consultative process into legislation gives an added impetus to the review of a Bill. Will the Minister reconsider it?

Mr. Treacy

The amendment has many merits. I agree with Deputy Barnes that adequate resources should be provided for the authority and I am confident that will be. While it cannot happen until the authority is in place, resources will be required for the new Act to make an impact.

No one doubts the value of recent public consultative fora in initiating valuable debate on issues and setting the agenda for action. However, the Minister is not convinced of the need to legislate for a temporary forum of this kind, especially as the Bill establishes a permanent framework for equality and for review of the legislation in the form of the new Equality Authority. Given the new structure, proposals and authority and the prominent framework being established for both equality and review of the legislation, such a forum is unnecessary.

Ms Fitzgerald

This is complex legislation as has been evidenced by its history. In the debate on the Bill in the Seanad and Dáil, it became apparent that there are a number of key issues which the Bill will not address. The issues of age and cohabitation have already been identified and there are others. It takes a long time for equality legislation to be enacted because the political will does not always exist for its enactment. For some strange reason, it takes longer for it to be enacted than any other legislation. I hope that is changing.

A public consultative forum would give an added impetus to amending, developing or introducing legislation to cover areas with which this Bill has not been able to deal. I am conscious of the work which has been done and of the wish of everyone in the Employment Equality Agency to see this legislation on the Statute Book. Notwithstanding that, there are areas which need to be addressed in an ongoing fashion and I believe a public consultative forum, in tandem with the review aspects of the Equality Authority, are important in terms of creating a stimulus and added motivation for ongoing work in the area of equality. I will press the amendment.

Mr. Treacy

I appreciate the point Deputy Fitzgerald makes and consultation is important. There is no doubt about that. However, it is unnecessary to include the forum in legislation; it would be a matter for the Minister of the day or for a committee to recommend that such a forum should be established. The Minister's view is that it would be unwise to include establishment of a forum in legislation because it might then be established merely for the sake of it which is not a good reason.

It is open to the authority to undertake a consultative initiative of the kind proposed by Deputy Fitzgerald. While the authority has yet to be established, I understand the Minister is not disposed to making statutory provision for such a forum. The authority is also empowered to establish advisory committees under section 47 to advise on any aspects of its functions, including the statutory review function provided in section 39(c).

It should be left to the discretion of both the authority and the Minister, either separately or jointly, to take an initiative in this area. Previous legislation has given such flexibility to authorities and successive Ministers and their Governments to tackle such issues. Enshrining it in legislation binds people when flexibility should be given to the authority, its subcommittees and the Minister to take whatever initiatives they want. Perhaps the Deputy will reconsider rather than press the amendment.

Mrs. Barnes

I accept the Minister's point that the authority might proceed along those lines. The Minister mentioned that a committee, such as this one, might also have the power to recommend that such a public forum be established. Is that the case?

Mr. Treacy

My interpretation would be that a committee, such as this one, would have the right to recommend to a Minister or authority that a forum be established on a certain issue. Such a recommendation would be at least entitled to be considered.

Ms Fitzgerald

I am conscious that there is an increasing tendency to hold such public consultative fora but they have been valuable in the area of education and in other areas. I am conscious of the delays and the slowness in tackling many equality issues, such as child care, for example. I believe an impetus will be needed to review the legislation and this could come from the Equality Authority. I hope it will. In that context and in the context of the committee being able to request such a forum and, it is hoped, obtain a positive response from the Minister, I will not press the amendment.

Amendment, by leave, withdrawn.

Section 6 agreed to.

SECTION 7.

Ms Fitzgerald

I move amendment No. 18:

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

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

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

This issue has been discussed over many years in the context of employment equality legislation. It arises because women are often grouped in low paid employment and because there is a difficulty in obtaining a comparator for tackling discrimination in the area. The question arises as to how such work can be compared for the purposes of eliminating discrimination. I realise it is difficult to develop a model for this but it is obvious that it should be done and this is an attempt to do it.

Despite equal pay and opportunities, it is clear that women predominate in low paid employment and are mostly atypical employees. They tend to be employed in three main sectors according to a recent report from the Employment Equality Agency: services, clerical and a narrow range of professions, although there have been dramatic changes. These two sections are intended to address this issue and develop a method of comparison so these matters can be tackled where there is discrimination in low paid sectors.

Ms O’Sullivan

I concur with this amendment. The question of a notional comparator is extremely important for the reasons given by Deputy Fitzgerald. In many cases people who are in low paid employment need a comparator with whom they can compare their wage to ensure they are given a proper level of wage. This is not available to them within their sector as they are all low paid. To some extent the minimum wage proposals will help but they are not enough. We need a notional comparator to deal with certain sectors of employees, women employees in particular, being stuck in low paid employment and having no way of bringing themselves up to a level comparable to other people doing similar work. It is a sensitive issue.

Attempts were made to find a way to deal with it and find a wording to incorporate this concept and make it stick in terms of increasing the levels of pay of those people who are paid unacceptably low wages for the work they do.

I ask the Minister to find a form of wording which can be included in this legislation. I also note that it was contained in the Fianna Fáil manifesto that the idea of a notional comparator would be dealt with. On that basis I know the Minister is concerned with finding a formula to deal with this issue.

Mrs. Barnes

This is central. The Employment Equality Agency has discovered that this is one of the biggest obstacles to women being able to compare work of equal value. The Employment Equality Act recognised the concept of work of equal value from the outset and I commend that. We have gained from that. Sadly, however, recent surveys show that women are at the bottom of the pyramid with no one with whom they can compare. They are working in all-women sections where there is no notional comparator as a result. I remember a ludicrous situation in an equality case taken under the existing law where women were proved to have higher valued work than the men with whom they were compared. They lost out because it was not work of equal value. It was described in Europe as a travesty of the interpretation of the law but it shows how important it is that we focus on this area. It is central to equal opportunity for women and giving those women at the bottom of the ladder a sense of opportunity to achieve equal pay.

Mr. Treacy

The purpose of these amendments is to introduce the concept of the notional comparator. The former Minister for Equality and Law Reform, Mr. Mervyn Taylor, gave active consideration to the possibility of trying to provide for a hypothetical comparator. His interest in the concept, like Deputy O'Donoghue's, was grounded in an interest in finding a means to gradually dismantle the vertical and horizontal segregation within the labour market. Unfortunately it did not prove possible for him to develop a viable model for a hypothetical comparator that would achieve the results intended.

Since the Minister Deputy O'Donoghue's examination of the legislative options in this area, upon taking office last year, he also reluctantly concurs with Mr. Taylor's view in so far as the Bill is concerned. In the context of the current Bill, the Minister regrets that he is not in a position to accept these amendments.

Ms O’Sullivan

In the attempt to find a way of dealing with these issues, what efforts have been made? Has the ICTU been consulted? Did the Minister examine legislation in other jurisdictions? It is something about which we all feel strongly.

Ms Fitzgerald

Will the Minister elaborate on the difficulties he found in his attempts to come up with a suitable formula? What are the barriers? It is a difficult concept.

I am also interested in Deputy O'Sullivan's point about international experience. Did the Department look at that and was there anything in that which could be applied to our situation?

Mr. Treacy

The issue of low pay is an entirely different matter and needs to be addressed by different legislation. In so far as the Minister can do in this legislation, he proposes to have expanded rights to equal pay. For example, the place requirement restriction which existed in the previous legislation is deleted in this Bill. He is also providing that a comparison can be made with the previous incumbent of a job and not necessarily with a person who is currently employed. It is his view that a more fruitful approach to tackling the problem of low pay is to examine the question of minimum wage legislation.

The programme for Government, An Action Plan for the Millennium, includes as a key priority the introduction of a national minimum hourly wage. To give effect to that commitment, the Tánaiste and Minister for Enterprise, Trade and Employment has established a national minimum wage commission to examine the issue. The commission published its report last month and it has been widely circulated. I understand the Tánaiste and Minister for Enterprise, Trade and Employment will, in the coming months, have extensive consultations with the social partners and other interested parties on this issue.

A consultative committee, co-ordinated by the Department of the Taoiseach, involving ICTU and IBEC, spent some months trying to resolve this issue. The one model of a notional comparator available in Europe, found in Holland, has been discontinued. We have looked at the international situation and had a consultative committee co-ordinated by the Department of the Taoiseach which has involved members of ICTU and IBEC. They were unable to resolve the issue and the only other European model has been discontinued.

Mrs. Barnes

Perhaps the model in Holland was so successful that they did not need to continue with it.

Mr. Treacy

That is an optimistic conclusion.

Mrs. Barnes

We welcome the debate on a minimum wage but it does not get to the kernel of the equal rights and opportunities with which these amendments are concerned. A minimum wage puts a value on what is perceived as low paid work, mostly because it is primarily women's work and had a low value placed on it. We are attempting to secure equal pay for women in situations where the value of the work is at least commensurate to that of the work of men. That is nothing to do with low pay or our perception of skilled and unskilled labour. It is a different principle in that there are many women who, because they are within the low paid area, are not doing what would be seen as low value work. They are doing highly skilled work but because there is no male wage which can be compared, they are excluded from making that case. That is why it is so important to have a comparator other than a minimum wage base.

Mr. Gilmore

I agree with Deputy Barnes. If and when the minimum wage appears - and depending on what level it is set at - it will obviously address, to some extent, the question of very low pay, but it does not resolve this issue which concerns the interrelationship between pay and the value of a job. I do not accept that this cannot be done. There is a range of mechanisms by which jobs can be and are evaluated, which would enable notional comparators to be established.

It is essentially a political decision whether to proceed with this. It is not the case that this cannot be done technically, because it can be. The skills available in the area of job evaluation are such as to enable comparators to be established. It is not a technical problem, it is a political one.

Ms O’Sullivan

I support what has been said. The whole idea that a person can be stuck at the bottom of the ladder without anybody with which to compare oneself, is anathema to the concept of equality. We will have to try and grasp that issue within legislation if we are to do anything about it. While a minimum wage helps, it does not solve that basic problem of inequality within the system for which we do not seem to be offering any breakthrough in legislative terms. That is the dilemma we are trying to bridge. We would like to grasp the situation in using the terminology we have used in the legislation.

Mr. Treacy

I fully understand what the Deputies have said and I also understand why they wish to achieve this. I certainly see much merit in it. I am not sure that it is a political decision, as Deputy Gilmore said. At the end of the day we can make all the political decisions we like but unless they are sustainable, workable, operable and practical they will have no meaning.

In our discussions with the Dutch, they made it quite clear to us that this was an unworkable situation. That was the only operation within the European Union to which we could refer. That has now been discontinued.

A number of provisions in the Bill will facilitate the elimination of pay discrimination in employment. In addition to the new provisions, to which I have already referred, the Bill provides for new powers for the equality authority to develop statutory codes of practice that may be harnessed to strengthen the movements towards equal pay.

In this context it is worth recalling that the European Commission last year published a code of practice on equal pay. The code aims to provide concrete evidence and advice for employers and trade unions to ensure that the principle of equality between women and men performing work of equal value is applied to all aspects of pay. The question of developing a suitable national code of practice on equal pay, which could be given a statutory basis under the Bill, can be discussed with the Equality Authority when it is in place.

One of the pillars of the Amsterdam Treaty, upon which we will vote on 22 May, is equal pay for equal types of work. There is a strong leaning in this Bill towards the aspirations in the new Amsterdam treaty. We must allow the matter to evolve by giving the authority its head and allowing it to address this situation. I hope the authority will be able to come up with the relevant code of practice. If necessary, that can be given a statutory basis upon which to ensure that equality is provided.

I draw the attention of Deputies to the new powers of the authority to carry out equality reviews and action plans. These powers provide the potential to examine pay practices in organisations with a view to eliminating inequalities based on discriminatory assumptions or practices. On the basis of these benefits, as well as the issues I have already discussed, it is not possible for us to accept the amendments.

In the past year or two, some strong decisions have been taken in the courts on this matter. Employers, both in the public and private sectors, must respond to those decisions and ensure that any discrimination pertaining to equal pay - commensurate with the type of work - and equal opportunity is eliminated. There is a raft of movement to achieve this positive conclusion.

Mrs. Barnes

We are discussing a difficult matter but it has been tackled in different ways elsewhere, given the political will. While it may not involve a notional comparator, the Swedes worked it in a very proactive way; they moved women into shipbuilding, for example, so that there were comparators there. They also moved men into child care and trained them for that work. In Sweden there was a definite policy of active affirmative progress.

According to the latest FÁS report, 1 per cent of apprentices are women. There has to be political will and action to move the situation forward. That is what these two amendments are about. There must be direct involvement and legislative action, otherwise it will continue to evolve for the next 1,000 years with women still not having the instruments of law with which to rise above the bottom level at which they are now trapped.

Ms Fitzgerald

I remind the Minister of State that this issue was in his party's manifesto prior to the general election. I wonder what gave him the confidence to include it at that stage. While he does not want to go ahead with it now, obviously, he felt it was possible.

Mr. Treacy

I commend, in particular, Deputy O'Sullivan who has in a very short time as a new Deputy read our manifesto. That is very enlightening and we are very pleased.

Ms O’Sullivan

I read it before I became a Deputy.

Mr. Treacy

Deputy Fitzgerald has more experience and she knows we are a very positive and futuristic party. We always plan forward, positively.

Chairman

Perhaps the Minister of State is getting ready to go into Government with us.

Mr. Treacy

It is a question of supporting good Government rather than getting into Government. Essentially, to desegregate the labour market it is necessary to begin to develop equal opportunity policies. To date, the emphasis at trade union level and in Government has been on anti-discrimination measures. The new authority has been specifically charged with promoting equal opportunities and it is to be hoped the resources necessary to begin the work in a proactive way, towards desegregation in consort with trade unions and employer interests, will come on stream.

It will be the intention, in establishing the authority, to strengthen it so that more resources can be provided to develop positive proposals to improve equality and address the issues that have been raised by Deputies.

Deputies referred to the manifesto and I am delighted this matter was included in it. The Minister has given this much thought and has consulted his officials and international interests about it. It is not practical at this time but we can address the matter by creating the authority, charging it with the responsibility of developing this and letting it come forward with proposals. Then we will give statutory effect to them in an evolving situation.

Mrs. Barnes

My point exactly.

Chairman

How stands the amendment?

Mr. Gilmore

How stands the manifesto?

Mrs. Barnes

Evolving.

Mr. Treacy

It is evolving, yes.

Amendment put.

The Select Committee divided: Tá, 7; Níl 8.

Tá

• Monica Barnes.
• Andrew Boylan.
• Frances Fitzgerald.
• Charles Flanagan.
• Eamon Gilmore.
• Jim Higgins (Mayo).
• Jan O’Sullivan.

Níl

• Sean Ardagh.
• Beverly Cooper-Flynn.
• Mary Hanafin.
• John McGuinness.
• Noel O’Flynn.
• Eoin Ryan.
• Noel Treacy.
• G. V. Wright.

SECTION 10.

Chairman

Amendments Nos. 19 and 20 are related and will be taken together by agreement.

Ms O’Sullivan

I move amendment No. 19:

In page 16, subsection (4), line 24, after "false" to insert "or who publishes or displays an advertisement contrary to subsection (1)".

This section deals with discrimination in advertising for jobs. Under this legislation it is an offence to make a discriminatory statement in an advertisement. My amendment proposes that to publish or display an advertisement contrary to the subsection apart from making a discriminatory statement will be an offence. Amendment No. 20 allows an individual with a particular interest in the matter, as well as the Equality Authority to take a case. In other words, anyone who feels they are discriminated against will be able to pursue the matter under this legislation.

Mr. Treacy

The purpose of this Bill is to prohibit discrimination on nine specified grounds in relation to employment and to provide a means of redress for persons who have suffered discrimination. Under this Bill discrimination will be part of the civil code. Criminal offences do not arise except in limited circumstances, for example, where a person knowingly and deliberately acts in an unlawful manner such as the circumstances set out in subsection (4) and there is no other appropriate remedy. The proposed amendment would make the publication or display of a discriminatory advertisement an offence, even in circumstances where the person publishing or displaying the advertisement is unaware that it is discriminatory. Such a broad provision would be contrary to natural justice. The existing procedures set out in subsection (5) provide more satisfactory results for those who would suffer disadvantage as a result of discriminatory advertising.

Regarding amendment No. 20, the right to seek an injunction in respect of a discriminatory advertisement is confined to the Authority under subsection (5). As the publication of such an advertisement is considered a public interest issue rather than an issue which affects any one individual, if individuals were allowed to refer such cases to the courts one advertisement could result in the unnecessary reference to the courts of a multiplicity of cases. In addition, no discrimination will have occurred against any individual under the terms of the Bill until the individual comes in contact with the advertiser and he or she is treated less favourably than another person responding to the same advertisement. At that point a prospective employee would have a right of redress in the normal way. I trust this clarifies the proposals contained in the Bill and that it will not be necessary to pursue amendments Nos. 19 and 20.

Ms O’Sullivan

I am not clear about amendment No. 20. It is a public interest issue when an advertisement is placed, but it is also of consequence to an individual if that individual feels he or she is discriminated against. I would prefer if an individual could be in a position to seek redress under the Bill in relation to a discriminatory advertisement which that person feels discriminates against him.

Mr. Treacy

It is generally accepted that advertising is a public interest issue. If an advertisement is placed an individual, whether or not affected by the advertisement could take a case as a result of the advertisement. If a decision was made to employ people, as a result of the case being taken, those people could be prevented from taking up employment, in which case it could be perceived the person pursuing the case was discriminating against those who wanted to take up the employment. This legislation proposes that a prospective employee would have a right of redress if they felt they were discriminated against as a result of such an advertisement. An individual secures the right of redress if he or she applies for a job and is rejected. In other words, if someone applies for a job and is rejected, they have a right of redress regardless of whether they were rejected as a result of the way they were treated during the interview, the way in which their application was processed or because the wording of the advertisement created a difficulty for them.

Ms O’Sullivan

I accept the Minister's response that if a person has reached the point of applying for the job they, and the Equality Authority, have the right of redress under the legislation. However, a person might feel he could not apply for the job because of the way in which the advertisement is phrased. A person should have a right of redress. I hope my amendment is accepted to ensure greater redress for the public in relation to advertisements. Clearly this is an area of concern and one where there should be no loopholes and every eventuality should be covered by the legislation. It is in that spirit I tabled my amendments.

Mr. Treacy

In the past certain positions were advertised requiring a specified minimum qualification for consideration for the posts. Those who had the maximum qualifications were debarred from being considered. I fought that very strongly and a very decent Minister who was not a member of my party overruled the decision and allowed 81 people enter the competition. I know of another case where people were treated in a similar fashion and a person pursued a case and proved they had a maximum qualification. It should be the right of an individual to work as a general operative regardless of whether one has a masters degree or a Ph.D. This matter has been addressed in the past. Under the legislation, if an individual does not apply for the post it remains a public interest issue and it will be up to the Authority to pursue the matter as a public interest issue. So there is a double redress - the individual who applies has the right to individual redress and the individual who does not apply, but perceives there to be discrimination as a result of the advertisement, can make a complaint to the Equality Authority who can then pursue the matter as a public interest issue.

Amendment, by leave, withdrawn.

Amendment No. 20 not moved.

Sections 10 and 11 agreed to.

Chairman

As it is now 3.50, I propose we adjourn until next Thursday.

Mr. Treacy

Are you suggesting we resume next Thursday on this legislative matter?

Chairman

Yes.

Mr. Treacy

I regret the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue will not be available next Thursday. Could the Committee reconvene on a day that would suit everyone?

Chairman

Tuesday afternoon?

Mrs. Barnes

Tomorrow?

Chairman

Evidently that would not work. There is only one hour free tomorrow morning.

Mr. Treacy

The Minister will not be available tomorrow. It will have to be the week after. We are all tied up next week.

Chairman

We will find a suitable time in the week after next and Members will be informed.

The Select Committee adjourned at 3.51 p.m.