Committee Reports > List of Committees > Joint > 1984 > Committee on the Secondary Legislation of the European Communities (4th Committee) > Report No. 06 - Proposals relating to Equality of Opportunity (including Parental and Family Leave)

REPORT

INTRODUCTION

Proposals Examined

1. The Joint Committee has examined the following Commission documents and proposals in relation to issues affecting equality of opportunities for women and men:

(a) Council Resolution of 7 June, 1984 on action to combat unemployment amongst women [84/C161/02].

(b) Proposal for a Council Directive on the application of the principle of equal treatment as between men and women engaged in an activity, including agriculture in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood [Com (84) 57 final].

(c) Draft Council Recommendation on the promotion of positive action for women [Com (84) 234 final].

(d) Progress Report on the implementation of the new Community Action Programme on the promotion of equal opportunities for women (1982-1985) [Com (83) 781 final].

(e) Proposal for a Council Directive on Parental Leave and Leave for Family Reasons [Com (83) 686 final].

(f) Proposal for a Council Directive on the implementation of the principle of equal treatment for men and women in occupational social security schemes [Com (83) 217 final].

(g) Interim Report on the application of Directive 79/7/EEC of 19 December, 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [Com (83) 793 final].

2. The proposals have been examined for the Joint Committee by its sub-Committee on Social, Environmental and Miscellaneous Matters under the chairmanship of Senator Mary Robinson. The Joint Committee is indebted to Senator Robinson and her sub-Committee for their work. The Joint Committee wishes to record its appreciation of the attendance by the Minister for Labour, Mr. Ruairí Quinn, TD, at its meeting on 12 September, 1984 when he gave an overview of the social affairs issues that will come up for consideration during the Irish Presidency of the European Council.

The sub-Committee received written memoranda from and also had discussions on the proposals with representatives from the Departments of Labour and Social Welfare and the Employment Equality Agency. It also considered written memoranda received from the Department of the Public Service, and the Irish Congress of Trade Unions.

The Joint Committee gratefully acknowledges the co-operation it received from Government Departments and the other bodies who made their views known to it.

The Joint Committee is particularly appreciative of the unsparing assistance given to it by Mr. Paul Cullen, Chief Officer of the Employment Equality Agency, in the preparation of this Report.

COMMISSION’S PROPOSALS

(a) Council Resolution on Action to Combat Unemployment amongst Women.¹

Introduction

3. The draft Resolution on Action to Combat Unemployment amongst Women was forwarded by the Commission to the Council on 22 February, 1984. It was a follow-up to the Commission Communication on Unemployment amongst Women which was considered by the Standing Committee on Employment at its meeting on 22 November, 1983, and it took account of the discussions held at that meeting.

The Resolution was adopted by the Council of Social Affairs Ministers on 7 June, 1984.

Consideration of Council Resolution

4. The Community action advocated in the Resolution is in the spirit of the Council Resolution of 12 July, 1982 concerning Community action to combat unemployment among and the promotion of equal opportunities for women².

The specific objective of the Resolution arises, in particular, out of the persistence of substantially higher unemployment amongst women than amongst men in Member States generally. The two approaches proposed for Community action consist in, first of all, affording women access to the whole of the labour market and, secondly, taking specific measures linked to the inherent characteristics of the employment of women. The main aspects of the Resolution comprise the basic principles underlying that action, i.e.

—real equality in the right of access to work,

—equal opportunities within the framework of general measures to promote employment growth,

—positive action to improve employment prospects,

and the guidelines to be implemented at various levels in relevant fields, including with the support of the European Social Fund.

5. The principles referred to above are listed in Chapter I of the Resolution which deals with the general objectives of the proposed measure. Chapter II covers guidelines for action within the framework of national policies and practices, in respect of job creation and recruitment and in the field of education, vocational training and guidance. The Community considers that the principles and guidelines should apply to action undertaken at every level, and also by encouraging both sides of industry where possible.

6. The female unemployment rate in Ireland is lower than that for males — a factor which is not common in most of the other Member States of the European Communities. However, the trends in registered unemployment in Ireland show that female unemployment is rising. The female share of registered unemployment (seasonally adjusted) has risen during the past two years from 23.9 per cent in April, 1982 to 25.6 per cent in April, 1984. In recent years, the general trend has been for a faster rate of increase in female than in male unemployment, and in the two-year period to April, 1984 female unemployment increased by 54% in comparison with increases of 40.9 per cent in male unemployment and 44 per cent in overall unemployment. It is also important to note that the figures for female registered unemployment are likely to understate the true employment situation.

Between March, 1983 and March, 1984 unemployment in the European Communities rose by 7.1 per cent for women, compared with an increase of 5.7 per cent for men and 6.3 per cent overall. The female share of total unemployment increased from 40.3 per cent in March, 1983, to 40.6 per cent in March, 1984.

7. Over the last 20 years in Ireland there has been a substantial shift of female employment away from agriculture and into certain areas of the services sector. By 1981 the services sector accounted for over 75 per cent of all female employment, as compared with just under 63 per cent in 1961. In Ireland in 1981, 97,200 females were employed as clerical workers in comparison with 35,900 males; and there were 41,400 males in administrative and managerial occupations in comparison with 6,400 females. There was less of a difference in the professional and technical occupations, in which men accounted for 81,200 and women for 77,400.

In Ireland labour force participation rates among women are lower than those for men. However, while the participation rate for men has decreased from 86.8 per cent to 84.7 per cent between 1975 and 1981, the participation rate for women has increased during the same period from 33.9 per cent to 35.3 per cent.

8. There is a substantial occupational imbalance in this country as between men and women in terms of entry into, and stay in, the labour market. The IDA, which is responsible for job creation in the manufacturing sector, says that it is concerned with attracting highly skilled employment for both men and women. It does not set separate targets for men and women. Women are considered as an integral part of the workforce, not a particular group to be singled out. The results of the most recent School Leavers’ Survey, carried out in May, 1983, in respect of young people who had left second-level education in 1981-82, showed that the highest proportion of young women were working in the service and clerical occupations. By contrast, most young men were working in the skilled and semi-skilled manual occupations.

9. Female workers are the group that will be most immediately and directly affected by the new information technology in the office. The majority of women are employed in the services sector and many of the occupations in this sector will be affected by skill changes due to office automation. Within the information sector, women tend to be concentrated in the less-skilled occupations such as secretaries, while men are in the higher-skilled areas involving the analysis and interpretation of material. Thus, it is likely that men will take a larger share of the new jobs in the information sector, while the participation of women will decrease.

AnCO has recognised the need for young women entering the labour market to undertake training in new technologies. The development of its positive action programmes for women in this area is intended to prevent the polarisation of skill levels between the highly technically skilled and the operator level, and between male and female. In addition, evaluations of the “Return to Work” Course which AnCO runs for women have identified a need to include a new technology module in all courses.

10. On the question of increasing female participation in vocational training schemes, the situation in Ireland is that girls currently outnumber boys on the youth training, employment and work experience programmes funded by the 1 per cent youth employment levy on incomes. There is, however, a kind of dualism within the system. On the one hand, participation in programmes offering pre-employment and secretarial training or work experience (where the take-up relates mainly to office work) is heavily female. On the other hand, participation is heavily male in training programmes run by AnCO.

11. The Youth Employment Agency (YEA) was given overall national responsibility, under the Minister for Labour, for activities in favour of the young unemployed and for the co-ordination of these activities. It was also charged with endeavouring “to ensure that the overall impact of youth programmes is such as to provide adequate opportunities for young persons of both sexes”. In this connection, the YEA has adopted an equal opportunities policy concerning the training and employment of young people on schemes, programmes and projects which are funded by the youth employment levy. An important aspect of the policy is that it requires all organisers of levy-funded activities to provide the YEA with information on the numbers of males/females in training or employment. This statistical information will be monitored by the YEA for analysis and evaluation purposes. It should provide an informed basis on which to consider how moves could best be made towards facilitating a “re-direction” of female participation in vocational training.

12. AnCO adopted an equal opportunities policy in 1975. The policy has as its focus increased participation by women and girls in training programmes; the integration of women into occupations traditionally held by men; and the unique training needs of women who return to paid work after a break. In 1975, 10 per cent of AnCO’s adult trainees were women — the current figure is 30 per cent. Women now represent one-third of Start Your Own Business Trainees. However, girls make up less than 1 per cent of the total apprentice population. Special programmes for women include the Return to Work Programme, the Women in Publishing Programme, the Women into Engineering Programme, the Women into Management Programme and a Computer Home Industries Course which was run on a pilot basis in 1983. A Women into Electronics Programme will be started in 1984. Research undertaken by AnCO has indicated that, if women are to successfully make the transition into traditionally male areas of employment, it will be necessary for them to be trained to a relatively high skill level for specific and defined occupations, as opposed to acquiring a lower-level family of skills. This is regarded by AnCO as an important criterion for non-traditional programmes.

13. The Occupational Guidance Service of the National Manpower Services (NMS), which is available in 7 of the 8 NMS regions (Dundalk excluded) provided guidance and advice to women who have special problems in obtaining, or keeping suitable employment. Training courses arranged for staff involved in this service contain modules designed to ensure that the officers concerned give equality of opportunity to unemployed persons of both sexes in submissions for vacancies notified.

14. Until the recent review of the European Social Fund (ESF), completed in 1983, there was a special area of Fund intervention designed to help women over 25 years of age to secure employment. That provision, which has been in operation since 1 January, 1978, allowed the Fund to support certain types of operations which satisfied the following conditions:

(i) they must have been designed to encourage the employment of women of 25 years of age or over with no vocational qualifications or with insufficient vocational qualifications where the entry or re-entry of these persons into working life proved particularly difficult;

(ii) they must have been related to (a) women who wished to take up an occupation for the first time or after a long break or (b) women who had lost their employment.

Such operations must have included vocational training measures aimed at preparation for working life or at motivating new choices of occupations, and at facilitating entry into occupations where there were job prospects.

Between 1978 and 1983, ESF assistance totalling £1.3 million was approved for training programmes for women over 25 years of age carried out by AnCO. The programmes included those relating to basic management, basic engineering skills, return to work, publishing and weaving.

15. With the exception of those programmes listed above, which were assisted under the special intervention in favour of women, all other operations for which ESF assistance was available were open to both men and women without discrimination. There has been a considerable increase in the percentage of women being trained on a wide variety of programmes. This position may be illustrated by the percentage of women on all AnCO training courses, which has risen from 10 per cent in 1976 to over 30 per cent in the last few years.

16. As a result of the ESF review, there is a special guideline (F1) for operations designed specially for women who are unemployed, threatened with unemployment, underemployed or wishing to return to work to promote a more even mix of the sexes in jobs in which they are under-represented.

All other training programmes, or those of job creation for women, are now submitted together with other categories of persons for which ESF aid is sought, under two age groups — under and over 25 years of age.

Views of the Joint Committee

17. The Joint Committee welcomes the Council’s Resolution and is in general agreement with its aspirations. It notes with approval the stress placed by the Council on equality of opportunity as the underlying factor in framing national policies and practices. In respect of job creation and recruitment, the measures taken should aim for a more balanced representation of men and women, particularly in skilled jobs, in the new technologies and where women are under-represented. The Joint Committee urges that equal opportunities should be vigorously promoted in the public and private sector. It is pleased to learn that the Minister for Labour has arranged for consideration to be given within his Department to the formulation of a general policy framework, within which the principle of equality of opportunity could be applied and that it is his intention to seek Government approval shortly for the application of this framework to public sector organisations. The Joint Committee sees the introduction of flexible working hours and reduction and reorganisation of working time as positive contributions to attaining equal opportunity in employment. Other specific areas the Joint Committee feels attention should be directed towards are the provision of child care facilities (which are practically non-existent here), job sharing and the protection of part-time working. Part-time work is traditionally and almost exclusively engaged in by women because of domestic and family commitments. There is a real danger, in the Joint Committee’s view, that any voluntary part-time work will lead to increased sexual segregation.

18. The Joint Committee also wishes to stress the need for equal opportunity programmes and policies to be adopted by the public and private sectors — particularly in the semi-State bodies. In the course of their detailed submission to the Joint Committee the Employment Equality Agency, inter alia, referred to the Report on Schooling and Sex Roles which the Agency commissioned from the ESRI. The Report highlights the fact that women’s employment prospects and careers are conditioned by their educational preparation. The Joint Committee is convinced that many of the employment disadvantages encountered by women when they leave the educational system and enter the labour market can be traced to this conditioning process which has almost condemned Irish women to “employee” status in the labour force where they undersell themselves and their abilities. Every effort must be made to assist women to integrate into traditional male occupations and to encourage them to develop local employment initiatives. However, there are major attitudinal and psychological problems to be overcome before women will break down the traditional barriers that face them in their right to work and seek economic independence. Vocational training in itself is not sufficient to overcome the problems. The curricula and attitudes within the education system will require updating to enable women to adjust to their new roles and occupations in our society. The Joint Committee hopes that the new Curriculum and Examination Board, set up by the Minister for Education, will give serious consideration to this matter.

19. The Resolution fails to emphasise the special problems of unemployed women and those women seeking to re-enter the workforce after an absence of some years because of family responsibilities. This category of worker is not provided with any special counselling or guidance and the Joint Committee would like to see this omission remedied.

20. In relation to youth employment programmes, the Joint Committee notes that only the Work Experience Programme (WEP) administered through the NMS has a preponderance of female participation — 64 per cent to 36 per cent for the males. This arises because the work experience programmes on offer are mainly in the services sector — traditional female type employment in secretarial work/typing/reception duties etc, and there is not, in the Joint Committee’s view, sufficient effort made to induce either the employers in the industrial sector or girls seeking work experience to participate in programmes in the industrial area. Very few young girls, if any at all, take part in the Community Youth Training Programmes organised through AnCO, as these may involve manual labour and are thus seen as unsuitable for females. The Joint Committee would urge the semi-State bodies concerned to take the necessary steps to attract girls to jobs in the industrial area where their latent skills and abilities appear to go unnoticed: It has been found, for example, in the shipbuilding industry in Scandinavian countries that women are very adept at such trades as welding, which is usually considered a male preserve.

21. The Joint Committee is dismayed to note the difficulties experienced by women in access to financial accommodation towards starting their own businesses and deprecates the absence of legislation in this area. Own enterprise promotion is seen as a major contribution towards solving the unemployment problem among males and females. However, women do not seem to get the same favourable treatment from lending institutions as do men. This applies in particular to married women who are treated as appendages to their supposedly better risk husbands. This has serious implications for employment initiatives which are based on self-generated economic activity such as co-operatives, partnerships, self-employed and young entrepreneur schemes. The Joint Committee welcomes the attention the Resolution directs to this matter and will have further comments to make on this subject in its consideration later in this Report (paragraph 26) of the Commission’s proposal for a Council Directive on the application of the principle of equal treatment as between men and women engaged in an activity, including agriculture in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood¹.

Conclusion

22. Between 1971 and 1981 women increased their share of the measured labour force by a small proportion. They remain very much a minority of the active population. When put in the context of the special employment conditions in which many women find themselves, as part-time workers, out workers, employees of clothing sub-contractors and wives of part-time farmers, the economic activity of women may be underestimated in conventional measures of labour force activity. The Joint Committee feels that the adequacy of recorded information on part-time work should be assessed.

The potential for increases in female employment should be considered both in terms of—

(a) the increase in the number of females entering the labour market; and

(b) the increase in the span of years women spend in the labour market.

Clearly female unemployment (because of intermittent employment through child bearing years) will continue to be more elusive, and thus more difficult to define in the same terms as male unemployment. The age and marital status profiles of unemployed men and women are quite different. Men are twice as likely to be married. Women who are unemployed are much younger and the age differences increased over the 1977-81 period.

If previous occupation is an indicator of type of job sought by unemployed persons, then unemployed men and women are looking for different types of jobs. Over 50 per cent of female unemployed can be classified into just 6 occupations in services and clothing.

23. The obstacles still being encountered by women oblige the Community to take new steps at a time when female unemployment in Europe is increasing at a much faster rate than male unemployment. Europe has already developed considerable legal instruments to promote job equality. In the Joint Committee’s opinion the acquisition of new qualifications and jobs could give women the opportunity of gaining access to new sectors of activity and new qualified jobs. Part-time work, parental leave and the training of women for new technologies all have a part to play but part-time work should not be imposed on women. The reduction of working time for everyone could be a remedy for unemployment. Modernisation could give women access to new, qualified jobs, on the condition that they were prepared to undergo the necessary training. The need for a new organisation of working time must be stressed in view of the fact that ideas about men’s and women’s roles have changed. Women have still to penetrate traditionally male occupations in significant numbers, and female employment continues to be concentrated in large consumer industries — textiles, clothing and leather — highly vulnerable to the ravages of the recession. Consequently, female unemployment in the 1970s grew 15 per cent faster than male unemployment. Even more alarming is the fact that in 1982, almost one in two people out of a job were young women under the age of 25.

The reasons for this state of affairs are many and complex. Among those pinpointed by the Commission are: insufficient new jobs to meet the demand for employment by women; increasing use of unstable forms of employment (part-time work, temporary or fixed duration contracts); and lack of job opportunities for women trained in a narrow range of skills.

24. Young women will have to be recruited for jobs in fields which are traditionally considered male preserves, introducing selective recruitment premia, increasing the participation of women in high technology sectors, promoting equal opportunities in the public sector, using the reduction in working time to promote equal opportunities by increasing work flexibility, and stepping up part-time voluntary work without discriminating against women. The number of women working in the advanced technology sectors will have to be increased, upgrading the qualifications of women who lose their jobs on account of restructuring programmes, and ensuring that there is a better balance between the number of men and women taking part in training programmes, especially new technology training programmes.

25. In times of recession the principles of equal pay for work of equal value and equal opportunities for men and women as enshrined in national laws, cannot be temporarily set aside. The Joint Committee welcomes the recent assurance by the Minister of State at the Department of Labour, when addressing EEC Labour Ministers, that a priority of the Irish Presidency of the European Council is to renew the momentum for women’s rights as in the 1970s which saw major advances in equal pay and other matters.

(b) Proposal for a Council Directive on the Application of the Principle of Equal Treatment as between Men and Women engaged in an activity, including Agriculture, in a Self-Employed Capacity, and on the Protection of Self-Employed Women during Pregnancy and Motherhood.¹

Introduction

26. This proposal also forms part of the new Community Action Programme on the promotion of equal opportunities for women (1982-85)². The Council of Social Affairs Ministers on 12 July 1982, adopted a Resolution on the promotion of equal opportunities for women. The Resolution, inter alia, noted the new Programme, welcomed the Commission’s initiative, approved the general objectives of the Programme and expressed the will to implement appropriate measures to achieve them.

Action 5 of the Programme stated that the Commission would propose a Community legal instrument following a review of the measures adopted by the Member States in various areas specific to women workers but not covered by Community Directives.

Accordingly, on 15th March, 1984, the Commission submitted to the Council a proposal for a Council Directive on the application of the principle of equal treatment as between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood.

27. The legal basis for the proposed Directive is Articles 100 and 235 of the Treaty of Rome. It is necessary to use these particular articles on account of the diverse categories to be covered by the Commission proposal. Article 100 provides for the approximation of national laws, differences between which might otherwise hinder the establishment and the functioning of the Common Market. Article 235 enables the Council, acting unanimously, on a proposal from the Commission, to take appropriate measures, after consulting the European Parliament, to attain one of the objectives of the Community for which the Treaty of Rome has not provided the necessary powers.

28. The draft Directive was forwarded initially to the Council in mid-March, 1984 and a revised version was subsequently transmitted to the Council by the Commission on 16th April, 1984. As yet, there have been no detailed discussions on the draft Directive. It is clear, however, that the proposals will require close examination at technical level, including clarification of the text. National administrations of Member States are also likely to require time for extensive consultations within their own countries because of possible implications affecting different Departments and other bodies.

Consideration of Draft Directive

29. The three existing Council Directives implementing the principle of equal treatment between men and women concern

—the approximation of legislation of the Member States relating to the application of the principle of equal pay for work of equal value¹;

—the application of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions²;

—a progressive application of the principle of equal treatment in matters of social security³.

Although the equal pay Directive applies only to workers in so far as they are employees, whether in the public or private sector, the other two Directives are of more general coverage, applying also to self-employed people. They do not, however, always take account of issues which are specific to the situation of those in self employment. None of the directives, moreover, can be made fully applicable to those workers whose occupational status is unclear. The spouse of a person working on his/her own account may, for instance, participate actively in the family business without benefiting from the status either of employee or of business partner.

30. The specific problems faced by women in self-employed occupations, especially women in agriculture (including wives actively engaged in farming) were highlighted in the Community Action Programme on the Promotion of Equal Opportunities for Women¹. This pointed out that, if such women are without a clearly defined occupational status, it is difficult to identify their contribution to the family income from their earnings; consequently their social security entitlement is also unclear. Even when they play a full part in the family business their status often remains that of a housewife, as defined by matrimonial law.

31. The Programme also stresses the need to improve the opportunities for women in self-employed occupations to obtain vocational training, especially technical and management training, making full use, as far as women working in agriculture are concerned, of Directive 72/161/EEC of 17 April 1972 concerning the provision of socio-economic guidance for the acquisition of occupational skills by persons engaged in agriculture.

32. It is evident also that women, especially wives sharing in the running of a business, but working without a partnership agreement or a contract of employment are very largely absent from the bodies representing the occupations in question; even if the law grants them the right to participate, which is not always the case for wives sharing the running of a business, the very low percentage of wives on electoral lists is very notable as is the small number of women in general who stand for election. The situation with regard to the liberal professions is different, in view of the need to possess certian professional qualifications.

Furthermore, both women sharing the running of the family business and those carrying on a self-employed occupation on their own account, whether as traders, craftswomen, members of a liberal profession or farmers, are not generally able to give up work during the weeks before and after their confinement since no allowance is available to compensate for the loss of income which would result from their absence from the business.

33. While some of the problems facing women in self-employed occupations arise because of their lack of occupational status, others derive from the fact that they may be the spouse of an own account operator and yet others are specific to working mothers or mothers-to-be.

34. This proposal for a Directive seeks to resolve the range of different problems by setting a series of broad objectives to be achieved by Member States, leaving them to choose the means, thereby taking into account their different legal systems and provisions governing specific sectors of activity. Articles 1 to 4 are provisions of a general nature. Articles 5 and 6 concern the elimination of obstacles to the status of partner or employee for the spouse. Article 7 provides for measures to ensure that the spouse of a self-employed person without a partnership agreement or contract of employment is entitled to the rights arising from his or her activity. Article 8 provides for protection during pregnancy and maternity. Articles 9 to 14 are final provisions of a more general character.

Views of the Joint Committee

35. The Joint Committee welcomes the Commission’s proposals as a major step forward for women’s rights, and hopes that its provisions, particularly in the area of social welfare entitlements, will be implemented as quickly as possible.

Western society is still based on the family unit: yet it accords little recognition of the work and contributions made by spouses of the self-employed particularly in farming enterprises. These women have no defined occupational status. In public they play a secondary role and have a very low level of representation, if any at all, in agriculture co-operatives and occupational bodies. Full recognition of the social and economic role of women in these circumstances is necessary, and the proposed Directive will, in the Joint Committee’s view, go a considerable way towards redressing the present situation.

The Joint Committee accepts that there will be some difficulties in adequately implementing this proposal, mainly because the unit being dealt with is the family unit and any attempt to impose remedies for problems which may be considered non-existent by one of the partners, could have the net effect of disimproving the situation for the spouse of that person.

36. In its Report on the application of social insurance schemes to self-employed persons and their families moving within the Community,¹ the Joint Committee’s predecessor expressed the view that under the EEC Treaty self-employed persons who are nationals of a Member State can take up and pursue their activities in another Member State in accordance with the laws and requirements of that State for its own nationals and it was, therefore, a logical step to co-ordinate the Member States’ social security schemes applicable to the self-employed. Ireland, however, did not then and does not now provide social insurance coverage for self-employed persons and so was not obliged to adopt the proposed Community Regulations. It was anticipated by the Joint Committee though that there would be a gradual extension of social security schemes to those not covered or inadequately covered and that concrete Community proposals in this area would emerge in due course. That time has now arrived. It was clear to the Joint Committee in their examination of the matter in 1978 that many self-employed persons would see their compulsory inclusion in a social insurance scheme merely as an imposition of a tax. It was, nonetheless, felt that there are self-employed persons who need and who would welcome the protection of social insurance, but on balance some departure from a comprehensive compulsory scheme is necessary to command widespread acceptance.

37. The Joint Committee would like to comment on the specific proposals in the draft Directive as follows:

Article 2

This Article deals with the scope of the draft Directive. It covers self-employed persons and their spouses where the latter participate to a significant extent in the activities of the self-employed worker.

The scope of the draft Directive is extremely narrow. Apart from the self-employed it covers spouses of the self-employed only, and this where the spouses are deemed to play a significant role in the activities of the self-employed workers concerned. However, family members other than spouses (for example mothers, daughters or sisters) may have exactly the same vague occupational status as a spouse has, and they would seem to be excluded from the Directive’s scope. The spirit and intention of the proposal as stated earlier would appear to be to redress the situation of women without a closely defined occupational status. Yet, these have been narrowed down to “spouses” with no reference to the case of women working on farms who may be relatives of the farm operator, though not spouses, and who do not have the occupational status of employee.

This point needs to be re-examined and the scope of the draft Directive broadened to include possibly other family members. A further point about this Article is the vagueness of the term “significant extent” and its possible wide interpretation. This is regarded as crucial, as the population to whom the draft Directive is applicable is defined by the way this phrase is interpreted. Further clarification of this point is indicated.

The Joint Committee would also like to point out that under Section 12 (d) of the Employment Equality Act, 1977. employment in a private residence or by a close relative is excluded from the application of the Act. These categories are accordingly excluded from protection under the Act against discrimination on grounds of their sex and/or marital status, even where their occupational status may be defined as that of an employee.

In their submission to the Joint Committee the Employment Equality Agency stated that it had long sought to have this section of the 1977 Act repealed, on the grounds that legal protection should be afforded to all citizens from discriminatory acts in relation to employment on grounds of sex or marital status or family status. This exclusion under the 1977 Act operates mainly to the disadvantage of women working in the rural community e.g. farmers’ wives, relatives etc. The results of the 1979 EEC Labour Force Survey include an estimated 24,800 males and 14,500 females who were at work assisting relatives. The great majority of these were engaged in agriculture, forestry and fishing.

The Joint Committee is very disappointed at the lack of any remedial action by the Government in this area despite repeated requests and exhortations for such action. In May last, a reasoned opinion was issued by the Commission of the European Communities concerning Ireland’s application of the equal treatment Directive as regards access to employment, vocational training promotion and working conditions. The Commission felt that this country was not complying with the Directive in excluding certain categories from the force of the legislation including those employed in a private residence or by a close relative.

The Joint Committee must record its dissatisfaction and disappointment, however, in that there is no indication of any proposed measures to be taken by the Government on foot of this reasoned opinion.

Article 4

38. This Article concerns equal treatment in the conditions governing access to self-employment. It is aimed at the elimination of any discrimination, direct or indirect, against persons—male or female—seeking a loan for business purposes.

In the Irish context, married women are generally not encouraged to sign hire purchase agreements regardless of their employment status. Likewise for a married woman to avail of credit facilities in a large retail store, these agreements have to be signed by the woman’s husband as a general rule. It is quite likely therefore that self-employed women seeking to borrow capital for a business venture, might not get an enthusiastic response from the banking world.

Since the trend is for more women to set up their own businesses, it is, in the Joint Committee’s view, important that they should have equal access to capital.

In the US at present, the Small Business Administration encourages minority and women-owned business. Women-owned business increased by 3.3 per cent between 1977 and 1980 with the most rapid growth in areas not traditional to women. Should similar trends develop in Ireland, there will be a need for specific policy initiatives for this purpose including equal access to capital. The American legislation should be examined in this area with the imposition of penalties against financial institutions for non-compliance. This would help to make this proposal more effective.

39. This Article covers cases where the family business is run as a partnership. Member States should ensure that no obstacles are placed to the formation of a company between spouses. In the Irish situation at least, the formation and running of a company involves considerably more administrative work than that of a partnership. The wording of this Article might be reconsidered given that the majority of self-employed people and their spouses are working in small scale concerns.

It is also suggested that the Article should include “other family members” in addition to spouses.

Article 6

40. This Article deals with taxation matters. It is accepted that the tax rules in most Member States have a restrictive effect on remuneration for work carried out by the spouse of the head of the business and are often discriminatory, both directly and indirectly, in their application.

The purpose of this Article is to ensure that a spouse working in a family business will get financial recognition and be treated for tax purposes as any other employee. In Ireland, at present, it is likely in many instances that the spouse’s contribution to the business is misrepresented on tax returns for two reasons:—

(1) It is simpler to fill in returns for one person and to regard the income from a business as a family income to be spent jointly,

(2) The fear that separate assessment will increase the burden of taxation and indirectly other contributions paid by the self-employed.

This Article, if adopted, will render the spouse liable for social welfare contributions. This will often be seen as a disadvantage and merely as an unnecessary increase in outgoings. The advantages accruing to the spouse in having her/his status defined, in a personal and legal sense, and also in regard to social welfare entitlements, may not be appreciated. The overriding concern in a small business is more likely to relate to the expected monetary cost of any changes.

Article 7

41. The intention of this Article is to ensure that spouses may benefit in the following suggested ways from their participation in the family business:—

(i) remuneration — in cash or some other form for their work as any other employee;

(ii) build up social welfare entitlements including pregnancy and maternity benefits;

(iii) be registered with or have similar access to any association or trade body as the self-employed worker has;

(iv) have voting rights and entitlements to stand for office within the bodies representing the self-employed provided any necessary job qualifications for such office are held by the spouse; and

(v) have access to training and retraining subject to the same conditions as the self-employed worker.

This Article will be difficult to implement. New legislation will have to be enacted and arrangements made for the handling of disputes.

Paragraph 7 (a) will be even more difficult to implement in the event of a dispute arising, as it were, directly within the family circle. In cases such as farming it might be better to draw up an agreement or settlement at the time of the marriage if the woman decides to participate in the running of the business. With this precedent established, the decision of the woman to share in the work would be more clearly viewed as a decision to work which must be reimbursed or recognised in some form, that is, by a wage or an agreed share in the profits. If the proposed Directive is to cover other “family members”, however, such arrangement on similar lines could possibly be drawn up if and when required.

As regards paragraph 7(b), there is no system here at present covering the self-employed for social welfare benefits. In its absence spouses will presumably continue to receive derived benefits from non-contributory pensions which is contrary to the intention of the proposed Directive. Maternity and invalidity entitlements cannot be built up by the spouses of self-employed workers in the absence of any scheme for the self-employed. Again women other than spouses may be affected here.

On the question of training, the proposed Directive stipulates that spouses of self-employed workers should have access to the same conditions in regard to training and retraining as are available to the self-employed workers themselves, including technical training concerning the occupation itself. The Commission sees such training as a means of providing the spouse with some degree of material security. Regarding agricultural pursuits, however, it must be stated that until fairly recently there was little, if any, training in agricultural matters available to women here, except in a peripheral way — home farm management, cookery, crafts, dairying, horticulture, poultry etc. The State financial support provided through ACOT for the five residential Rural Home Economics Colleges in the country providing this type of training for women was withdrawn from June, 1984. It is understood, however, that in view of the possibility of these Colleges having a role to play in the context of general youth employment and training programmes within the province of the Youth Employment Agency (YEA) or AnCO, negotiations are currently taking place to see if one or both of these organisations can continue to administer, through these Colleges, an agricultural training course for young people of both sexes. In addition the farm home advisory service has been phased out and is being replaced partially by a socio-economic service that will deal with farm problems and the problems of farm housewives in a very limited way.

ACOT itself, under the aegis of the Department of Agriculture, provides a certificate course of three years duration in farming that is open to males and females, though the numbers of females participating are very small as the following statistics show:

To date 142 have taken part in Option 1 of the Course; (134 males, 8 females); 74 males have taken part in Option 2, and 300 have taken part in Option 3 — 294 males, 6 females.

Option 1 gives the scientific background to farming set in formal group learning situations. Option 2 concerns supervised work experience on a farm. Option 3 incorporates basic management knowledge/skills set in a formal group learning situation.

Finally, in regard to the training needs of women in agriculture, the women’s Committee of COPA (the Committee of Agricultural Organisations in the EEC) has focused on a number of areas where action is indicated to improve women’s position in agriculture. These areas are relief services as referred to in Article 8 which the Committee hopes will receive EEC aid — both with the setting up of the service and its running costs; active involvement by women in co-operatives, with the family farm being considered as one unit where both husband and wife are equal partners; the organisation of training courses to take account of women’s needs; that women participants be paid the same allowances as men; that their allowances could be used to pay replacements and that farm relief services be made available; and that the European Agriculture Guarantee and Guidance Fund (FEOGA) and Social Fund aid, if available, be used to train women in farming methods and, in the field of socio-economic guidance, with more advisers, particularly women advisers, to inform farmers, especially women farmers, of the benefits and FEOGA measures available to them.

Opportunities for women in this country who wish to become actively involved in farming and even its ancilliary activities are very scarce indeed — more so in view of the recent close-down of the few courses previously on offer. There is a pressing and definite need for positive action programmes in this area, which should be inaugurated now, and not await the adoption of the Draft Directive.

Article 8

42. This Article deals with any measures necessary to ensure that women self-employed workers and spouses of self-employed workers have adequate social welfare maternity benefits or be able to call on relief services during interruptions to their occupational activities due to pregnancy or maternity.

It would seem to the Joint Committee that this will require the introduction of specific benefits through a social insurance scheme for the self-employed with the addition of State support for relief services for those for whom these are more relevant. The problem here will be objections to the cost of providing relief services — if this cost has to be borne by the State. Also in the case of marginal workers, the cost of contributions to a social security scheme may be a decisive factor, especially if a woman is already covered by her husband’s contributions. The mechanism and procedures necessary for the implementation of this Article would need to be clearly specified.

Article 9

43. This Article is to ensure that the machinery for legal redress is made available to those pursuing claims of unfair treatment under the Directive when adopted. The difficulties that may arise under Article 7 will also be in contention here.

Conclusion

44. The Commission proposal on equal treatment for men and women exercising an independent profession is the last of the series of four Directives on equality. The Directive on equal pay relates exclusively to salaried workers and wage-earners, while the Directive on equal treatment in access to employment, professional training and working conditions, as well as the one on social security, also cover independent workers. However, they do not always take account of specific aspects of independent workers’ situation and none of them can be fully applicable to workers whose professional status is not clear. The husband or wife of a person working independently, for example, may actively participate in the family business without having the status either of employee or of associate. And, in so far as these women (predominantly farmers) do not have a professional status of their own, it is difficult to identify their contribution to the family’s income and their social security entitlements. Even when they play a full part in the family farm, their status frequently remains that of housewife, defined by the marriage laws. The Directive thus relates to all persons exercising an independent profession together with their spouses who are neither paid a salary nor classified as associates but who nonetheless play an active part in the independent business of their spouse. It sets out the principle of equal treatment in the following terms: absence of any discrimination based on sex, either directly, or indirectly, especially by reference to the marital or family status.

45. In addition to the legal measures needed for the implementation of the Draft Directive, the Joint Committee wishes to stress the importance of promotion once the proposed Directive becomes effective. It should be incumbent, in the Joint Committee’s view, upon the Member States to sponsor campaigns to stimulate awareness and knowledge of the proposal’s contents. It is particularly important that full information is provided for all those who might benefit from the Directive, when adopted, and also such organisations affected by it e.g. training bodies and organisations representing the self-employed etc.

46. Proposals for the extension of social insurance to the self-employed are, in fact, being considered in the context of a National Pension Plan which is at present before the Government. These proposals would go some way towards meeting the obligations which would arise if the Draft Directive were to be adopted in its present form.

The Joint Committee looks forward to an early decision on the National Pension Plan so that it can assess it in relation to the Commisson’s proposals under the Draft Directive which it hopes can be adopted within a reasonable time-scale.

(c) Draft Council Recommendation on the Promotion of Positive Action for Women¹

Introduction

47. This proposal also forms part of the new Community Action Programme on the Promotion of Equal Opportunities for Women (1982-85). The Resolution adopted by the Council of Social Affairs Ministers on 12 July, 1982 on the promotion of equal opportunities for women among other things, noted the new Programme, welcomed the Commission’s initiative and approved and expressed the will to implement appropriate measures to realise the general objectives contained therein. Action 9 of the Programme specifically aims at promoting, at national level, framework legislation to develop positive action.

Accordingly, on 24 April, 1984, the Commission submitted to the Council a proposal for a Council Recommendation on the Promotion of Positive Action for Women. The legal basis for the proposal is Council Directive 76/207/EEC on the implementation of the principle of equal treatment between men and women as regards access to employment, vocational training and promotion, and working conditions. Article 2 (4) of the Directive provides that—

“This Directive shall be without prejudice to measures taken to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas referred to in Article 1 (1)”.

48. In its present format the draft Recommendation recommends, among other things, that the public sector should take specific measures to remove de facto inequalities affecting women in working life, thus setting an example for the introduction of similar initiatives in the private sector.

If adopted, the draft Recommendation will result in a non-binding Community instrument. This would enable account to be taken of national practices and provisions and would ensure sufficient flexibility to individual firms to adopt measures which would be most appropriate to their particular circumstances.

The draft Recommendation has been given preliminary consideration by the Social Affairs Council at working group level.

Consideration of draft Council Recommendation

49. Action 9 of the new Community Action Programme on the Promotion of Equal Opportunities for Women (1982-85) deals with the development of positive action, the aim being to promote framework legislation at national level to this end. This is provided for under Article 2 (4) of the equal treatment Directive 76/207/EEC which allows for such measures by the Member States. It has been the Community’s experience that in the absence of a legal framework for the implementation of positive action measures, including the necessary penalties, that practical action is generally neglected.

50. The effect of positive action measures on the workforce in this country as perceived by the Joint Committee is summarised as follows:

It is now ten years since the first legislation designed to remove discrimination in the work place was passed by the Oireachtas as part of what the then Minister for Labour called a trinity of legislation dealing with discrimination in all its aspects of employment. The trinity was to consist of legislation on equal pay, equal opportunities and unfair dismissals. The Minister said at the time that the legislation on discrimination would give a lead to the public. The inference was that to make the lead effective, initiatives would be required from both management and trade unions. While recognising that both groups have their respective roles to play, the crucial responsibility for making the legislation effective lies with management. The equality legislation, in particular, singles out employers as the group obliged to provide equal opportunities and, therefore, most directly involved in giving effect to these measures.

51. The advice to management is not new. It has been repeated and articulated by such bodies as the Employment Equality Agency over the years. Yet, after years of exhortation and advice on what policies are required, few Irish organisations have developed the policies and of those, even fewer have attempted to see that behaviour is in line with the good intentions stated in their policies.

Among the reasons the Joint Committee identifies for the failure of management to take adequate action in relation to policies on equality of opportunity are:

the people with the power and influence to make equal opportuinty policies effective do not feel any need for such policies. The majority of them are male and have no direct experience of the problems. Women still have low participation in manufacturing industry and have next to no representation at management level. Those who press for change can therefore be ignored as unrepresentative of the feelings of the majority; the changes recommended by such bodies as the Employment Equality Agency are not in harmony with other systems in the company. For example, it would be unrealistic to suggest to an organisation that does not have formal systems for monitoring sales or cash flow that they introduce a formal systems to monitor equal opportuinty policy. Where an organisation manages its business without written policies and procedures in every other area, it is unlikely to manage the issue of equal opportunity by adopting policies and procedures. If the organisation does act out of character and issue a formal policy, it is unlikely to work. Managers will conclude that the written policy is merely a public relations exercise because from their experience they know that when the company really wants change, it goes about it in a different way.

Where organisations have introduced policies and procedures as the management response to discrimination, there are a number of reasons why their effectiveness might be disappointing:

it can be argued that changes in policy will change behaviour very gradually and that visible signs cannot be expected. This argument is unlikely to reassure individuals who feel they are losing opportunities now;

where organisations do bring about change for formal alterations to policies and procedures on most issues, it may not work when applied to equal opportunity. There is a possibility that the new policy will be understood intellectually but that in fact only superficial changes will be made. This is because on an issue like equal opportunity it is impossible to spell out all the implications and there is genuine confusion about indirect discrimination and reverse discrimination. A policy manual will not change attitudes and assumptions about women that were acquired unconsciously as part of the process of growing up; and

in most organisations it is all too easy for declarations of intent to be ignored, in practice, by everyone.

52. The Joint Committee understands that it was for these reasons the Employment Equality Agency recently decided to publish a Code of Practice. The Code provides guidelines to help employers and trade unions understand how direct and indirect discrimination works against women. The Agency has asked employers and trade union bodies to examine the Code, which has only an advisory status at present, and to ensure its adoption and implementation at all levels. What is required is that managers publicise its recommendations to ensure company-wide awareness and interest. The next step in stimulating a company response to the equality legislation is to identify any areas in the organisation in which women (or men) are disadvantaged or under-represented.

The Agency urges the development of equal opportunity policies and their implementation as sound personnel management and good business practice. It is not enough, however, to change the policies or make managers aware of the law. The work environment must also encourage change and support it when it happens. Some public sector companies are considering the appointment of Equal Opportunity Officers. The Agency considers that the provision of training for managers and the designation of equal opportunity officers will greatly assist in promoting and monitoring equal opportunity.

Making managers more aware of the law and appointing special equal opportunity officers should not, however, be considered a substitute for implementing an equal opportunity policy. It is in everyone’s interests that the skills and talents of all employees should be fully developed and utilised. Positive action on equal opportunity is flexible and objective and can be adapted to fit the specific needs of any work organisation.

53. Only a very small number of Irish employers have adopted a policy of including an equal opportunity statement in all their published recruitment advertising. Under the Employment Equality Act even where an actual job title has no distinctly masculine or feminine form it is still necessary to make sure that advertisements cannot be understood as indicating an intention is discriminate. The Employment Equality Agency advises that, where a job has always been thought of in the past as ‘men’s work” or ‘women’s work”, it should be made clear in the text of any advertisement that both sexes may apply.

54. The Joint Committee notes that in August/September, 1983 the Employment Equality Agency co-operated with a Brussels-based womens’ voluntary group Solidarite-Femmes-Emploi on an EEC financed research project embracing eight Member States of the European Communities. The research sought to establish the progress in equal opportunity as reflected in the newspaper advertisements of job vacancies. The Irish sample of almost 1,000 job vacancy advertisements revealed 92 per cent compliance with the avoidance of discriminatory terms — the second highest after Britain’s 96 per cent and ahead of Denmark’s 87 per cent. There was a much lower level of compliance in Belgium (31 per cent) and France (32 per cent). The researchers attributed the high levels of compliance to the special enforcement powers of bodies like the Employment Equality Agency. The Employment Equality Agency has expressed disappointment, however, that only 6 per cent of the Irish job vacancy advertisements analysed indicated that the jobs were open to men and women. The Irish position contrasts unfavourably with Britain where 36 per cent of the advertisements welcomed applications from men and women.

The Employment Equality Agency emphasised in their submission to the Joint Committee that it would like to see advertisers and publishers qualifying all job titles in those terms. The Agency’s Code of Practice recommends employers to adopt this as a form of positive action, backed up by an explicit equal opportunity policy.

55. Following the enactment of the Employment Equality Act in 1977 the public became aware of the necessity to examine the participation rate of women in the paid workforce. The low participation rate of women in paid employment was seen as partly due to the operation of the marriage bar which was in force up to the mid 1970s and made it compulsory for women in public sector employment to resign on marriage. Following from this, some Affirmative Action Schemes, designed to create equality of opportunity between the sexes, were introduced in a number of semi-State bodies at the request and prompting of the Employment Equality Agency and local unions. Some of the companies involved in Positive Action Programmes of this kind include the IDA, AnCO, RTE, Aer Rianta, ESB and Aer Lingus.

56. As regards the reference in section 4 (e) of the draft Recommendation to the under-representation of women at promotion levels, as far as the Irish public service is concerned, the small number of women in the senior grades is due to the formal restriction on the employment of married women mentioned above. Legislation has been enacted to end this restriction and its remaining effects should be corrected in time. The Civil Service Training Centre now provides management development training for women at middle management level which should go some distance towards redressing the imbalance between men and women in the higher echelons in the Civil Service.

57. As regards the reference in Section 4 (f) of the draft Recommendation to greater flexibility in working hours etc., the Department of the Public Service has arranged for the introduction in the Civil Service of a number of schemes in this area which are of special benefit to women, e.g:

—flexible working hours, which allow daily hours to be split into mandatory core-time and voluntary flexible time;

—job-sharing, which allows the working over a period of years of a half-time job on half-pay; and

—career breaks, which allow leave without pay to be taken for a period of years.

Similar schemes are being extended to other parts of the public service in consultation with the staff interests concerned.

58. The Annex to the draft Recommendation sets out an indicative outline for the drafting of a programme of positive action in each “undertaking”. This programme would involve a wide range of activities being implemented by a team of a manager, a co-ordination and information group and an expert in equal opportunities matters. These activities would add to cost across the economy. As to the public sector, the Department of the Public Service in their submission to the Joint Committee states that it would not be possible at present to provide additional resources, either of staff or money, for this purpose and that consequently it would be necessary to find such resources from within existing (perhaps diminishing) allocations. This, the Department asserts, would be extremely difficult for most organisations in the public sector and doubtless impossible for some.

59. In her article⁽¹⁾ “Women in the Irish Civil Service” Ms. Ita Meehan makes the following specific recommendations to achieve equal opportunity for women:

(i) Conscientisation of the Civil Service, particularly those involved in selection procedures, in regard to the rights of women and the present unequal patterns in regard to promotion;

(ii) Detailed research to establish beyond doubt the reasons for the grossly unfavourable position of women in relation to promotion in the Irish Civil Service in general and in individual Departments in particular;

(iii) On completion of the research, follow-up action on a structured basis to eliminate or change any procedures or practices which militate against women; and

(iv) Review progress every two or three years to test the efficacy of the steps taken.

The Department of the Public Service has a clear responsibility in this area as have heads of other Government Departments. However, Ms. Meehan fears that the impetus for effective action towards achieving change may not be generated.

Views of the Joint Committee

60. In regard to the Commission’s current proposals or policy initiative in the area of positive action, the Joint Committee is disappointed that the Commission has settled for a draft Recommendation rather than a draft Directive as requested by the European Parliament in its Resolution of 17 January, 1984. It appreciates that the great diversity of structures and the different traditions and cultural ethos within the Community calls for a flexible voluntary approach to the subject, initially at any rate, though possibly more binding legislative measures may well be required at a later stage, should reaction be negative or poor with little positive support for any voluntary initiatives suggested.

61. In framing the equal treatment Directive itself, the Commission anticipated the need for the introduction of positive action measures that would be specifically designed to overcome de facto inequalities and to complement the legislation regarding equal treatment. Thus the Commission’s proposal for a Council Recommendation in this area in complementing the equal treatment Directive seeks to have the Member States adopt explicit strategies on positive action to be directed towards and implemented by a variety of different agents including the social partners. The Joint Committee urges strongly that both the public and private sectors should be involved. In this context also, emphasis must be placed on the importance of monitoring closely the effects of positive action measures. It is equally important, in the Joint Committee’s view that information about positive action be widely disseminated and that reports be presented regularly on progress made and experience gained.

62. A commitment to remove obstacles and to support measures to promote equal opportunity implies a systematic approach and a recognition that indirect or, in American terms, “systemic” discrimination is a root cause of unequal treatment as between male and female workers. Removal of systemic discrimination, in the Joint Committee’s view requires an intervention programme which is action oriented and is designed to facilitate equality goals.

63. In Ireland we do not have an equal rights provision in the Constitution which gives equal rights to men and women in trade, profession or occupation. Neither is there a legal provision regarding equality in education. Provisions in the Employment Equality Act of 1977, which prohibit discrimination in regard to access to training, do not ensure that positive action is taken. The effect of the 1977 Act is to give rights to individuals to pursue claims. The legislation does not call on employers either in the public or private sector to take steps to achieve equality between male and female workers. Amending legislation is needed, in the Joint Committee’s view, to require employers to initiate actions which will assist desegregation of the work-force and thereby remove some of the burden of proof from a claimant under the Act of 1977. The Act has, in practice, required an almost impossible burden of proof and has initiated no positive promotion of equality measures. The Joint Committee recommends that placing of notices which give information regarding the 1974 and 1977 Acts be mandatory in places of work. The present legislation should be extended to include this provision.

64. Financial provision for information on equality issues by means of campaigns in the media is essential. Information campaigns based on reliable, locally initiated research and findings will require existing research organisations to include equality research as a priority. Administrative provisions require to be made positive: this indicates a programme in which administrative practices are constructed to fit a set of Government stated and supported goals of achievement, and which require specific measures in the public sector such as a direction to make and update statistical studies on the situation of women, to analyse and identify obstacles to equality and to support a range of initiatives including training and re-training arranged at times and places to suit women; to adopt recruitment advertising and organisational rules, and to remove sex bias from interviewing procedures and assessment criteria.

65. In the public sector all the above legal financial and administrative changes have already been indicated as elements to be considered in the light of the Government’s commitment to eliminate discrimination between women and men and to increase the participation of women in decision-making roles. The needs of working parents in regard to child-care, child-care leave and flexibility of working arrangements etc. is also part of a systematic approach.

66. The Joint Committee welcomes the steps taken in the Civil Service for flexible working hours, for job-sharing and career breaks and hopes that the extension of these schemes to other areas of the public service will be expedited. It also welcomes the steps being taken to prepare women for higher management posts in the Civil Service. However, the Joint Committee is concerned about the serious imbalance in favour of males at management level in the Civil Service and wonders whether a policy of positive discrimination in favour of women in this area could be justified in the interests of equality and urges the Department of the Public Service to consider this option.

As regards the programme of positive action mentioned in the Annex to the draft Recommendation the Joint Committee hopes that this laudable proposal will not be still-born on the grounds of lack of finance despite the economic problems facing the country.

67. The Joint Committee supports the recommendations put forward by Ms. Meehan for achieving equality of opportunity for women in the Civil Service and endorses her contention that “the most convincing argument [for equality of opportunity] is probably that of equality”. It is unjust to treat women less favourably than men and this is particularly reprehensible where public money is involved. To the extent that such inequity exists, in the Civil Service or indeed elsewhere, it ought to be eliminated and eliminated quickly.

68. In order to secure the promotion of equality in the private sector the Joint Committee advocates legislation to require employers to introduce equality clauses which are made known to all workers and which will take precedence over current practices and agreements which constitute indirect discrimination in recruitment, methods of selection and choosing for promotion etc. Such legislative provision could not cause any punitive sanction for good employers as it would merely establish good practice instead of traditional practice which has been shown to have adverse impact for members of one sex. This kind of legislative change could strengthen the individual’s rights already established under Article 2(c) of the 1977 Act.

69. Article 5 of the draft Recommendation states:

“To enable existing statutory bodies, responsible for equal opportunities, to play a full role in promoting such measures and in disseminating information about such measures within the Member States and within the Community, by providing these bodies with appropriate means of action”.

The statutory body in this country responsible for equal opportunities is the Employment Equality Agency. The Joint Committee hopes that the Government will provide the Agency with the “appropriate means of action”. The Joint Committee would interpret this provision to include resources, consultative status with Government Departments and semi-State bodies, facilities to collect statistics in the public and private sector and to monitor progress.

70. The Joint Committee recommends that the published Code of Practice of the Employment Equality Agency be given the status of fair employment rules, and be admissible as evidence and that every action programme must be capable of evaluation by reference to a monitoring procedure.

71. The Employment Equality Agency drew the Joint Committee’s attention in particular to its policy statement on equal opportunity measures recommended for the Civil Service. The Government, as a major employer, must, in the Joint Committee’s view adopt an exemplary role in providing information, setting visible standards and monitoring progress on their achievement.

72. Finally, the Joint Committee recommends that all expenditure of public funds and issue of contracts should be reserved to institutions and organisations which take steps to make themselves “equal opportunity employers”, in conformity with the guideline in the annex to the Draft Resolution. This, in the Joint Committee’s view, is not a punishment sanction but an effective inducement to change to good practice.

Conclusion

73. The Commission’s proposal recommends to Member States to adopt a strategy on positive action, designed to eliminate de facto inequalities affecting women in working life and to promote desegregation in the labour market. For that purpose it proposes to Member States to adopt and promote appropriate measures for positive action taking account of national practices and provisions, in order to counteract or compensate for the prejudicial effects on women in employment or seeking employment which arise from existing social attitudes, behaviour and structures based on a perceived division of roles in society between men and women; and to encourage the participation of women in all occupations and sectors of working life where they are at present under-represented and at all levels of responsibility.

74. The draft Recommendation also proposes that Member States ensure that such measures are taken in the public sector and all agencies concerned with vocational guidance, training or placement; that such measures are promoted in the private sector and organisations representing employers, workers and the self-employed, including such organisations in the agricultural sector; and that such measures are made known to women and particularly young women and women seeking employment, as well as to the public at large.

75. The Joint Committee understands that the Minister for Labour independently of the Commission’s current initiative, is already giving consideration to the formulation of a general policy framework within which the principle of employment equality can be applied and hopes to submit proposals to the Government at an early date to seek its approval in respect of the application of this framework, as an initial step, to State-sponsored organisations. The Joint Committee also understands that it is the Minister’s objective, on the basis of experience gained in the public sector, that the equality framework could ultimately be extended to employment in the private sector. The Joint Committee is pleased to acknowledge the Minister’s determination in the field of employment equality and is particularly pleased to note that the Minister is anxious to secure adoption of the draft Recommendation during the Irish Presidency of the European Council.

76. The enactment of the Employment Equality Act in 1977 brought about a public awareness of the necessity to examine the participation rate of women in the paid workforce. The low participation rate of women in paid employment was to some extent due to the operation of the marriage bar in the public sector. This bar was in operation until the mid 1970s and provided that women would have to resign on marriage. From this background some semi-State bodies, often prompted by the Employment Equality Agency and the local trade union, considered the adoption of affirmative action schemes which were designed to create equality of opportunity between the sexes. A summary of these initiatives is contained in “Equality of Opportunity in the Public Sector”⁽¹⁾ and is reproduced, in updated form, in Appendix 4 of this Report.

(d) Progress Report on the implementation of the new Community Action Programme on the promotion of equal opportunities for women (1982-85).²

Introduction

77. Council Resolution of 12 July, 1982—

(a) approved the new community Action Programme on the promotion of equal opportunities for women, and

(b) asked the Commission to present an interim report by 1 January, 1984 on progress achieved and on implementation under the new programme based on information obtained from the Member States.

In this Progress Report, the Commission has focused principally on its own activities, leaving the actions taken by Member States to be included in the full report it is to make in 1985.

This Progress Report, therefore, is a summary of the Commission activities together with a brief run-down on certain specific aspects of actions undertaken by Member States.

78. The Specific Actions which comprise the Action Programme are set out under two broad headings viz:

(a) the achievement of equal treatment by strengthening of individual rights, and

(b) achievement of equal opportunities in practice, particularly by means of positive action programmes.

Under (a) the Actions have been listed as follows:—

Implementation of existing Community Directives on equal treatment for men and women

—Monitoring of the application of the Directives

—Legal redress in respect of equal treatment

—Revision of national and Community protective legislation

Preparation of additional provisions and extension to new sectors

—Equal treatment in matters of social security

—Application of the principle of equal treatment to self-employed women and to women in agriculture, particularly in family enterprises

—Taxation and the employment of women

Improvement in living and working conditions

—Parental leave, leave for family reasons

—Protection of women during pregnancy or motherhood.

Under (b) the following Actions are set out:—

Preparation for working life, initial and continuing training

—Development of positive action

—Intergration into working life (in particular with respect to new technologies)

—Vocational choices.

Employment

— De-segregation of employment

— Analysis of trends in female employment

— Application of the principle of equal treatment to women immigrants.

79. Improvement in the quality of life

— Sharing of occupational, family and social responsibilities

— Evolution in public attitudes.

Five of the Actions require the Commission to submit to the Council of Ministers proposals for Community Instruments in the following areas:—

— Equal treatment in matters of social security

— Application of the principle of equal treatment to self-employed women and to women in agriculture, particularly in family enterprises

— Improvement in living and working conditions, parental leave, leave for family reasons

— Protection of women during pregnancy or motherhood

— Development of positive action.

Consideration of Progress Report

80. In the Progress Report the Commission, in the course of its review of Action A2 of the Programme (bodies dealing with equal treatment and opportunities), states:

“It should be noted that in Ireland, the annual grant which the Agency for Equality in Employment (Employment Equality Agency) receives from the Government has been nearly quadrupled in 1983 to encourage the Agency to carry out its tasks more effectively”.

In their submission to the Joint Committee the Employment Equality Agency does not challenge the statistical accuracy of this statement but wishes to put it in perspective.

The Agency came into operation in 1977 at a time when the financial allocations for that year had already been settled. Following the change of Government in that year, money, staff and accommodation had to be found out of the resources of the Department of Labour. As a consequence of these developments the Agency had a low starting base at the outset which set the pattern for subsequent years in which the Agency has continued to be inadequately financed. The greatest proportion of the grant is expended on the salaries of its staff of ten — all of whom are civil servants assigned to it from the Department of Labour and only a small percentage of the grant is disposable after fixed costs have been met.

There are a number of areas in which the budget of the Agency has proved or is likely to prove inadequate. Increased resources are necessary in particular to cover the costs of legal advice and assistance, consultancy fees, and research grants. The general arrangements for the financing and administration of the Agency do not satisfactorily reflect its character as an independent body.

Appendix 3 of this Report sets out an abstract of the Agency’s budget since its inception.

81. In a further reference in the Progress Report to Action A2 of the Programme dealing with amending legislation on the protection of women’s employment enacted since the adoption of Directive 76/207, the Commission states that the Irish Government gave notice on 26 February, 1982 that it would no longer apply ILO Convention No 89 as from 26 February, 1983. This course of action was recommended by the Employment Equality Agency in its report to the Minister for Labour in November, 1978 following a review on industrial night-work for women. The Agency found that women were being denied jobs, losing out on promotional opportunities and taking home less money because they could not be employed on night-shift rosters.

As from the end of February, 1983 it is now possible for the Minister to make exclusion regulations from the conditions of the Employment Act, 1936 if he is requested to do so by an employer who has the agreement of the workers’ representative organisation. This means that women who wish to do so, may work under licence after 10.00 p.m. and before 8.00 a.m.

82. In their 1978 Report the Employment Equality Agency recommended that for the future “A licensing arrangment, incorporating a consultative process in respect of all forms of shift working, including night work and continuous process shift work, should take account of local conditions affecting hours of work, transport and rest periods. This would take account of child-care facilities outside the home and school which may limit the availability and mobility of parents. Special provisions would also have to be made to ensure that pregnant women would not be forced to do shift work against their own wishes or medical advice nor that they would be forced to leave their employment.”

83. The Commission makes reference to systems of pregnancy and maternity protection and includes mention of the introduction in Ireland of the Maternity Protection of Employees Act, 1981. The Employment Equality Agency in their submission to the Joint Committee, however, takes the view that the Act is very limited in its scope. It gives an employee certain legal rights, e.g. to take maternity leave, to return to work, job protection during maternity leave but does not go much further. The Agency representative who appeared before the Joint Committee made reference to a paper delivered by its seminar in Dublin in 1982⁽¹⁾ which deals with this subject in detail. Some of the problem areas mentioned however, such as pregnancy related illnesses, parental leave, paternity leave, have had further consideration within the intervening period, and some progress can be recorded on them. The Joint Committee deals with the Commission proposals on parental and family leave in this Report. (Paragraphs 93-130).

84. In connection with the legality of excluding pregnancy related illness from the scope of disability schemes, the Agency welcomed an Equality Officer’s Recommendation of 15 May, 1984 on this important issue. The Agency assisted the ASTMS in the presentation of this case taken by two female employees against the Shield Insurance Company Limited alleging discrimination contrary to Sections 2 (1) and 4 of the Anti-Discrimination (Pay) Act, 1974 in that the Company’s Income Continuance Plan permitted exclusion in the case of females’ disablement arising from pregnancy or childbirth for three months following termination of pregnancy. The Equality Officer recommended that the exclusion be deleted from the terms of the claimants’ membership of the Company’s Plan. The principle has therefore been established that discriminatory clauses of this type are prohibited under the equality legislation.

Under the heading in the Progress Report dealing with the public sector the Employment Equality Agency in its submission to the Joint Committee states that the Agency is actively pursuing the matter of equal opportunities in this area. This involves the urgent need, as seen by the Agency, to have indirect discrimination such as the application of age-limits, removed from recruitment procedures in the public sector and that this lead, if given by the public sector, might be followed by the private sector. The Agency is also very concerned to ensure that equal opportunity policies particularly as regards promotion, training and work experience are operated at all levels throughout the public sector.

Views of the Joint Committee

85. The Joint Committee is satisfied that the budget of the Employment Equality Agency is insufficient to carry out the functions devolved on the Agency by the Oireachtas, both with regard to staff levels and members, and with regard to the cost of activities necessary after salary costs have been met. The present arrangements for financing and selecting staff means that the Agency is reliant upon a single, comparatively small Government Department to supply high level staff. In particular the Joint Committee believes that the recruitment of specialist staff would require that a selection be made from a wider pool.

The Joint Committee commends the sterling work of the Equality Employment Agency in securing equality for women (and men) in employment and cautions that inadequate budgets and staffing levels can only impede this work.

86. The Joint Committee draws attention to the cut from 80 per cent to 70 per cent of gross pay made by the Government in April in the maternity benefit payable to women who take time off from work to have a baby. The reason given by the Minister concerned was that women were being over-compensated for loss of earnings while absent from work during their 14 weeks maternity leave.

It is the Joint Committee’s view that the reduction can only have a serious detrimental effect on many women workers on low pay and that, far from reducing the minimum statutory support for working mothers at a time of childbirth, there is a real need for an extension of the arrangements for paid time off. The Joint Committee feels that the financial pressures arising from the lack of full earnings replacement may mean that a woman would be deterred from taking up the option of four weeks unpaid leave and would return to work before she is physically ready to do so.

This topic is further considered in section (e) of this Report.

87. In regard to promotional measures to inform the public of their rights on equality matters the Joint Committee commends the Code of Practice for the elimination of sex discrimination and the promotion of equal opportunity in the work-place prepared by the Employment Equality Agency and published in February, 1984. The Joint Committee is confident that publication of the Code will increase awareness of employers, workers, trade unions, employment agencies and the public generally regarding the rights and duties spelled out by legislation and that use of the Code will encourage the growth and implementation of equal opportunity policies. In addition, the Joint Committee hopes that use of a code of practice in relation to equality matters in employment generally, will promote public awareness about inequalities and help to bring about a change in attitudes in the public generally.

88. In the sphere of vocational guidance and training, the Joint Committee took note of the ESRI Report “Schooling and Sex-Roles” which was commissioned by the Agency and published in June, 1982. It has become increasingly evident that the traditional crowding of women into a small number of occupations, mainly nursing, teaching, office work, health care and personal services reflects the outcome of women’s different educational preparation. The Employment Equality Agency made a number of recommendations to the Department of Education in this regard arising from the Department’s proposal to establish a Curriculum and Examination Board. The Joint Committee urges that serious consideration be given by the Department to the Agency’s recommendations.

In the Joint Committee’s view, the “Schooling and Sex Roles” research study highlights serious pragmatic grounds for worry about the continued viability of even the restricted positions in the labour market available to women and about the type of very general second-level education being received currently by girls which places many of them at a serious life long disadvantage in the labour market and in the relationship between their work and family roles. The findings of this Report leads the Joint Committee to the conclusion that the statutory responsibilities of the Employment Equality Agency should be broadened to cover the area of education.

89. In the area of training, statistics show the percentage of females compared to males who take part on AnCO training programmes, as pretty low — 29 per cent females compared with 71 per cent males. The position is considerably worse in regard to apprenticeship training with only 1.5 per cent female apprentices as against 98.5 per cent male apprentices in June 1983. The picture emerging from the Youth Employment Agency programmes is somewhat similiar — the take up on Community Youth Training Programmes in June, 1983 being 94 per cent males and 6 per cent females. The only programme that appears to the Joint Committee to be female orientated is the Work Experience Programme (WEP) where the work experience is for the most part provided in the services sector of industry and concerns secretarial/receptionist duties mainly. Females consistently outnumber the males participating on Work Experience Programmes by roughly 64 per cent to 36 per cent. This leaves a situation where most out-of-school training programmes, particularly those aimed at early school-leavers, involve a larger proportion of boys in the overall context, WEP excepted.

90. The Joint Committee urges that sufficient resources be provided to enable the Employment Equality Agency to give either a promotional or an enforcement stimulus to desegregation in the public sector. It is disappointed that to-date the Government has not taken the necessary measures to comply with the Reasoned Opinion from the Commission regarding certain categories of employment excluded from the force of the 1977 Act. Section 12 of that Act provides that the Act does not apply to employment in the Defence Forces, Garda Síochána, the Prison Service or in a private residence or by a close relative. Neither does selection for jobs by the Local Appointments Commissioner or the Civil Service Commissioner come within the scope of the Act. Apart from the actual exclusion of jobs, the Joint Committee feels that a further important omission is that there is no machinery for review of the grounds for exemption of these categories even where the originally accepted reasons may no longer exist.

Conclusion

91. In order to draw up the Progress Report, the Commission requested the Member States to provide information. In view of the replies received, which varied considerably, particularly as regards the volume of information and the implementation of specific actions laid down in the Programme, the Commission decided to focus principally on its own activities, leaving the actions taken by Member States to be included in the full report it is to make in 1985 on the basis of Member States’ contributions.

The Commission considered that as this is an Interim Report, it should take the form of a summary, even with regard to own activities, which will be described in greater detail in the 1985 report.

92. On the subject of equal treatment for men and women the Joint Committee would like to instance a case before the European Court of Justice which ruled in favour of Italy against the European Commission. The Commission had accused Italy of failing to comply fully with the EEC Directive on equal treatment for men and women, particularly where access to jobs was concerned. It considered in particular that the Italian rule that men are not entitled to parental leave granted to women for three months after the adoption of a child ran counter to the EEC Directive. In this case, the Court said the distinction was justified (as the Italian government had rightly claimed) by the concern to ensure as far as possible that conditions for a child’s arrival in an adoptive family resemble those for the arrival of a new-born child as closely as possible “during this very delicate period”. Thus, the Court ruled the difference in treatment which has been criticised did not constitute discrimination in contradiction to the EEC Directive.

(e) Proposal for a Council Directive on Parental Leave and Leave for Family Reasons.⁽¹⁾

Introduction

93. When Senator Robinson’s Sub-Committee (Social, Environmental and Miscellaneous Matters) considered the Commission’s proposals for parental and family leave it was proposed that the Joint Committee would issue a separate report on this matter. However, it was felt that parental leave and leave for family reasons formed an integral and indispensable part of a policy of equal opportunity for women (and men) and that it, accordingly, belonged organically to the other proposals under consideration in this Report.

94. The Minister for Labour, Mr. Ruairi Quinn T.D., discussed specifically this proposal with members when he attended the meeting of the Joint Committee on 12 September, 1984 when he gave an overview of the programme of social affairs matters which it is hoped to progress with during the Irish Presidency of the European Council.

95. The Commission’s proposals on parental leave and leave for family reasons are based on the new Community Action Programme on the Promotion of Equal Opportunities for Women (1982-85). This Programme was recommended by the European Parliament in its Resolution of 11 February, 1981 on the situation of women in the European Community.¹ In its more recent Resolution on family policy the European Parliament has again insisted that priority be given by the European Community to the development of parental leave.²

96 The object of the draft Directive is to establish common statutory provisions throughout the Community governing parental leave and leave for family reasons. It concerns male and female workers in the public and private sectors and is designed to ensure that the principle of equal treatment for men and women is fully respected by establishing the entitlement of workers to such leave, under harmonised conditions throughout the Member States.

97. Parental leave may be defined as leave granted to fathers or mothers during a period after the termination of maternity leave to enable parents in employment to look after their new-born child for a certain time whilst giving them some degree of security in respect of employment, social security and remuneration. The proposal would give a working parent, whether married or not, the right of non-transferable parental leave of at least three months. It could be taken at any time during the two years following the birth or adoption of a child. The fact that it would be a personal right is aimed at encouraging fathers to use it. The duration of the leave is set at a minimum of three months.

98. The issue of the payment of an allowance during parental leave has been left up to Member States themselves to decide. Any allowance however, should be paid from public funds, social security systems included, in order to avoid any need for direct payment by employers. This principle is to ensure that under no circumstances should this proposal have a negative influence on the employment of younger workers.

99. The Commission has noted with interest the suggestion that the systematic replacement of workers on parental leave by unemployed workers would enable a parental leave allowance to be financed with virtually no extra burden to public funds.

100. The proposal on leave for family reasons relates to short periods of leave to be granted to male and female workers for pressing family reasons. These reasons can include the illness of a child or, in the context of Irish society, cases where single workers, particularly women, have responsibility for the care of aged parents. A minimum entitlement of a certain number of days per year is to be fixed by the Member States. Under the proposed Directive this leave should be assimilated to paid holidays for the purposes of remuneration and social security.

Consideration of Commission’s Proposals

101. The draft Directive envisages parental leave as a child-related absence from work available indiscriminately to a male or female parent, including an adoptive parent. The leave would be of a certain minimum duration. Failure to take parental leave within two years of the birth of a child would result in the forfeiture of the right of such leave, Leave for family reasons would consist of an entitlement to a certain number of days per year in respect of familial exigencies.

102. There is no statutory entitlements to parental leave or leave for family reasons in Ireland. However, the Joint Committee understands that the question of maintaining rights to certain social security pensions in the case of absences from employment devoted to bringing up children is being considered in the context of proposals for a National Pension Plan already referred to.

103. At present, the only legislation in existence in Ireland relating to child-related absences from work is the Maternity Protection of Employees Act, 1981. This entitles a female employee who is in insurable employment and who ordinarily works for 18 hours or more per week for the one employer to a minimum of 14 weeks maternity leave. During this period employees who satisfy the contribution conditions stipulated in the Act are entitled to claim a pay-related maternity allowance. This allowance is administered by the Department of Social Welfare under the Social Welfare [Amendment] Act, 1981. In addition to the above, an employee has the option of taking up to four consecutive weeks unpaid leave immediately following on from her maternity leave.

104. A significant feature of the draft Directive concerns the payment of an allowance in respect of absences from work due to parental leave. The proposal, as it stands, provides that the payment of an allowance would be optional. The intention is that Member States would make a decision as to the feasibility of establishing a right to remunerated leave, bearing in mind national economic circumstances.

105. The draft Directive (Article 9) requires Member States to introduce judicial or quasi-judicial systems to enable those with grievances under the Directive to pursue their claims.

106. The likely rate of take-up in the event of the statutory availability of parental leave and leave for family reasons has not, as yet, been quantified. The Table set out in Appendix 1 outlines the numbers who benefited annually under the Maternity Protection of Employees Act, 1981, since the introduction of the scheme. These figures might give some indication as to the impact of a scheme of parental leave and leave for family reasons. However, the number benefiting under the scheme would depend, to a large extent, on whether an allowance would be payable in respect of periods on parental leave or leave for family reasons.

107. Adoption of the proposed Directive would necessitate the enactment of national legislation to provide a statutory basis for a comprehensive scheme to cover parental leave and leave for family reasons, in addition to the amendment of existing labour legislation, for example:

—Holidays (Employees) Act, 1973; to ensure that the time spent on parental leave etc., will count as “qualifying hours” for holiday entitlement purposes;

—Minimum Notice and Terms of Employment Act, 1973; to incorporate absences due to parental leave etc, in the computation of continuous service; and

—Redundancy Payments Acts, 1967 to 1979; ditto.

108. Parental leave, granted to working parents to spend a period of time at home caring for very young children, following the termination of maternity leave, exists in several Member States but in different forms, often discriminating explicitly against working fathers and in some cases being wrongly assimilated to maternity leave. For example, in the Federal Republic of Germany four months leave is given to the mother, and public sector employees — both mothers and fathers — can have up to three years’ unpaid leave. France gives two years’ unpaid leave to the mother or the father if the mother gives up her right to it. Greece cuts the working week by one to two hours for working mothers. The aim of the new proposal is to establish common statutory provisions governing this specific aspect of working conditions, not only in a way which respects the principle of equal treatment, but also in order to promote a more equitable sharing of family responsibilities between working parents and to contribute in this way to greater equality between men and women in the labour market.

109. Leave for family reasons enables workers to take time off to attend to emergency or exceptional situations arising in the home, such as the illness or death of a spouse or child. The right to this kind of leave is already widespread in the Community, in the context of national legislation or collective agreements.

Views of Worker and Industry representative Bodies

110. In its submission to the Joint Committee, the Department of Labour states that the draft Directive has only had preliminary consideration to date at Council working group level and for this reason the likely time schedule for its consideration cannot be assessed at this stage. The implications of the draft Directive are still, according to the Department, unclear in many respects and as some of the provisions are rather complex, they will require further detailed examination. The Department cautions, however, that the implications of the introduction within the public service of a scheme such as that proposed by the Commission are profound, particularly in the context of the current embargo on staff and that, if an entitlement to such leave were introduced, the maintenance of essential services could require some easing in staff reductions by the Minister for the Public Service.

111. The Department also asserts that it is essential that any proposals to grant parental leave and leave for family reasons take adequate account of the economic and financial situation prevailing in Member States, including the implications for cost-effectiveness and ultimately the overall level of employment.

112. In their submission to the Joint Committee the Employment Equality Agency affirms the Agency’s strong support for the statutory acknowledgement of parental responsibility and has urged that fathers as well as mothers be offered the facility of post-natal leave. The Agency is of the opinion that choices available to parents are severely limited, and that this means that many women have to give up work when a child is born while others struggle to combine work and motherhood with very little support. Fathers on the other hand are denied all but the obligation to support the mother and child financially. The Agency contends that the inclusion of fathers in the statutory scheme would greatly increase the range of choices available to parents and would help people to fulfil their commitments as parents and as employees. It is essential, the Agency submitted, that parents be able to decide for themselves who is to have the primary responsibility for the infant, or whether this is to be shared by both of them.

113. In the course of their appearance before the Joint Committee the representatives of the Employment Equality Agency reaffirmed the Agency’s support for the Commission’s proposals and added that, despite the inadequacies of the provisions regarding maternity leave currently available in this country, the existing statutory framework already provides a basis for improvement. Public debate in Ireland, however, continues to demonstrate a reluctant acceptance of maternity rights in paid employment, and the statutory entitlement of 14 weeks is the minimum requirement for the health needs of the mother and the infant. This, in the Agency’s view cannot be regarded as parental leave which is linked with child care needs. The representatives of the Agency further stated that Irish workers who become parents get little communal help. The reality, in their view, is that during the first six months of a child’s life there are virtually no childcare facilities in Ireland other than those provided by the immediate family. The Agency had expressed its disappointment, they said, at the absence of progress in implementing the findings of the Government Working Party on Child Care Facilities for Working Parents which recognised the need for nationwide provision of nursery places. Without policy changes relating to the provision of child care facilities and the statutory recognition of parental leave, the Agency felt that it would be difficult to see the gap between male and female wages and male and female participation rates narrowing further.

114. In their submission to the Joint Committee the Irish Congress of Trade Unions states that it welcomes the Commission’s proposals as an important initiative in promotion of equal opportunities for women particularly as, in contrast to the situation in other Member States, parental leave and leave for family reasons is not a well established practice in Ireland. Congress sees the draft Directive as vital to the development of parental leave as an established right of working parents. It urges that the scope of the definition of parental leave be broadened to include a period of leave prior to the placement of a child with adoptive parents in order that they have the opportunity to be available for the necessary consultations that invariably precede the actual placement of the child. Congress feels that the length of the period of parental leave should be extended to six months with a requirement that the first three months be paid leave. It submits that this can be achieved by an extension of the existing maternity allowance scheme. It is misleading, in the view of Congress, to refer to the “right to parental leave” without making provision for a parental leave allowance. Without such provision, the right to parental leave would be confined to a minority of workers who could afford to avail of it. This is totally coantrary to any perception of equality as between workers themselves or between men and women. Women tend to be lower-paid and therefore less likely to avail of unpaid leave. Congress therefore strongly recommends that the provisions of Article 6, which provide that Member States may provide a parental leave allowance out of public funds, be implemented in Ireland as an essential part of the Directive.

115. In relation to the list of pressing family reasons set out in the draft Directive Congress recommends that the list be extended to cover illness of a dependant. This is particularly important, in its view, in the context of Irish society where many single workers, particularly women, have responsibility for the care of aged parents, relatives or other members of the family.

116. In their submission to the Joint Committee the Confederation of Irish Industry advocates strong Irish opposition to the draft Directive. The Confederation feels that the implementation of the Commission’s proposals would substantially increase costs of employment to Irish industry by adding a burden on direct labour costs and administrative costs, resulting in the disruption of production and giving rise to uncertainty to employers at a time when there is a need for stability in the Irish labour market. Industry would, in its view, have to set up another administrative procedure to monitor and arrange such leave for employees. There would be a disruption of production, due to skilled operatives taking leave and possibly having to have them replaced with unskilled people or personnel who are not trained for a particular task. The Confederation also contends that the draft Directive may also further discourage foreign investment in Ireland by imposing an additional burden on the potential investor.

117. On the subject of leave for family reasons or family emergencies, the Confederation advocates that this should be left on a voluntary basis for each firm to decide on the merits of each case.

118. The Confederation discounts the Commission’s contention that parental leave can contribute to “greater flexibility in the organisation of working time and that it could be used to give an opportunity to provide valuable work experience for young people” on the grounds that it is essential to have the bulk of employees present during key times and that in many industries it is not possible to replace a skilled employee with an unskilled one and expect the company to maintain the same level of output during the leave period. An example cited before the Joint Committee is Waterford Crystal Glass Limited whose operatives must work in teams.

119. In their submission to the Joint Committee the Federation Union of Employers states that it totally opposes the adoption of the Commission’s proposals. The Federation contends that employers already bear a heavy burden of social security contributions, which represent a tax on both the maintenance of present levels of employment and the creation of new employment. In its view, any increase in the tax or social insurance contributions levied on employees’ pay results in their seeking to maintain nett income by increases in pay, thereby increasing employers’ costs and fuelling inflation.

120. On the subject of leave for family reasons the Federation states that the Commission’s proposals are, in effect, a means to increase the amount of paid annual leave to employees and that European employers, including the FUE, have rejected all attempts by the Commission to impose reductions in working time. The Federation reiterates the challenge to the Commission’s contention that the proposals would contribute to greater flexibility in the organisation of working time.

121. On the Commission’s view that increased periods of leave serve to reduce absenteeism levels, the Federation states that the Commission displays a disquieting degree of naivety. There is no evidence, according to the Federation, that increased periods of leave serve to reduce absenteeism levels. In fact, in Ireland the experience with expanded leave arrangements introduced in recent years is that these have had no beneficial effects whatsoever on absenteeism and, particularly in relation to maternity leave, are associated in many cases with even higher levels.

Views of the Joint Committee

122. Provision for parental leave and leave for family reasons has become increasingly widespread in the Community in recent years in the context of national legislation and collective agreements concerning working conditions. This reflects, in the Joint Committee’s view, a welcome trend towards greater recognition of the family responsibilities of workers particularly working parents, who have to care for small children. Leave for family reasons, which is designed to enable male or female workers to take leave of very limited duration to attend to emergency or exceptional situations arising in the home, is a fairly well established practice in most Member States. Parental leave, granted to enable working parents to spend a period of time at home caring for very young children following the termination of maternity leave, is a more recent concept applied in rather different ways in many Member States, often discriminating explicitly against working fathers and in some cases being wrongly assimilated to maternity leave.

123. The Joint Committee feels that Irish employers and Irish society generally have been slow to acknowledge the changing and interchanging roles of men and women in employment. Traditionally it is the woman who forsakes her job and career to look after children and dependent relatives. The Joint Committee sees no reason why this practice cannot be changed and views the Commission’s proposals as an inducement to such change.

124. Due to industrialisation there are more women in the workforce than previously. Many women today have no choice but to work due to the change from a rural based economy to a cash based one. Where both parents are working it is understandable that marriages can come under stress and the Oireachtas has acknowledged the prevalence of this phenomenon in Irish society by setting up a Joint Committee on Marriage Breakdown to investigate and suggest means of remedying this serious problem. The Joint Committee on the Secondary Legislation of the European Communities believes that the availability of parental leave, while not a panacea for all marital stress, could make a valuable contribution towards its relief.

125. In relation to absenteeism the Joint Committee refutes the belief that parental leave would exacerbate this serious problem. In fact, it believes that if parental leave and leave for family reasons were available absenteeism could well decrease. Where employees know that such leave is available as of right they would, in the Joint Committee’s view, be more circumspect about capriciously absenting themselves from work. Employers on the other hand would, in some cases at least, have notice of the intending absence from work and be able to adjust their work programmes accordingly. The Joint Committee notes with concern the absence of any recent comprehensive survey on absenteeism.⁽¹⁾ In these circumstances one has to rely on independent estimates and on surveys carried out by employer bodies. In this regard the Joint Committee notes that Aer Rianta carry out an annual absenteeism survey. This survey, however, deals solely with absences outside the normal provisions for leave. Annual, special, compassionate, maternity and paternity leave and leave in lieu are not included. An extract from the survey is reproduced in Appendix 2. The Joint Committee urges that a comprehensive study be undertaken into absenteeism so that the problem can be assessed and remedial measures considered.

126. The Joint Committee in its consideration of the Commission’s proposals regarded them as innovative and approached them in a positive frame of mind. It sees the Commission’s proposals for parental leave and leave for family reasons as another possible step forward in the reforming programme of the Community towards employees and particularly as an opportunity to advance the rights of women workers. The Joint Committee gave serious consideration to the Commission’s view that the proposals could give opportunities for greater flexibility in the organisation of working time and could provide opportunities for work experience for young people.

The majority of members of the Joint Committee, however, after detailed consideration of the Commission’s proposals, feel they would, if adopted at the present time, offer another challenge to our struggling economy. They point to the fact that strong economies, like the German Federal Republic, have lost their enthusiasm for the proposals. Indeed it appears at present that the proposals for parental and family leave have been relegated in the priority list of social policy at Community level. The Joint Committee sees the restoration and revitalisation of the economy as of paramount importance in order to preserve the fabric of society and offer hope and fulfilment to the unemployed and those about to enter the labour market. It feels that this consideration may in some circumstances take precedence over bringing about improvements, albeit important and desirable, in the conditions of those already at work. The Joint Committee particularly regrets that this opportunity to further the welfare of women cannot be grasped at present. It hopes that the other positive measures in the New Community Action Programme for Women, which are dealt with in this Report, will go some way towards arresting this setback with parental and family leave.

127. High unemployment throughout the Community — some 12.5 million at present — has diminished public concern about the specific problems of working women. The Joint Committee is, however, pleased to acknowledge the commitment of the Minister of State at the Department of Labour at a recent meeting of EEC Labour Ministers that a priority of the Irish Presidency of the Council of the European Communities will be to restore the momentum of women’s rights to the vibrancy of the 1970s which brought such major advances as equal pay and which swept away much of the overt discrimination that women faced in the work-place.

128. While the Joint Committee must countenance the fact that a time of economic adversity is not the most propitious time to propose socially progressive measures in the field of employment such as parental and family leave it advises, nevertheless, employers, whose objections may appear sustainable in the present economic climate, to prepare to accept such measures when the hoped for upswing in the economy takes place. The Joint Committee feels that Irish employers would be well advised to face the inevitable in a state of preparedness rather than take up a reactionary stance. Work practices and the definition of work are poised to go through changes that could not be contemplated ten years ago, due to the revolution brought about by computer technology. With a rising graph of youth unemployment every avenue must be explored to give them a share of the work available. The Joint Committee feels that those at work owe the unemployed the duty of giving them every chance for personal fulfilment and the dignity of employment. The reforming programme of the Community in the domain of workers has sent out shock waves which have been felt strongly in this country particularly over the past ten years when a whole range of protective employment legislation was placed on the statute book. The programme of reform has a momentum of its own. As already indicated, the Commission’s proposals are already substantially incorporated into the laws of some Member States. A positive long term approach by management to the proposals, through good work practices and enlighted management could redound to the mutual benefit of all the social partners. Finally, the Joint Committee hopes that, if and when, the proposals are adopted they will be availed of by men as well as women.

Conclusion

129. The Joint Committee has detected a tendency to associate maternity leave and parental leave in the public mind. The distinction was manifested by the European Court of Justice last July when this matter came before it. The Court refused to grant a German national, Mr. Hofmann the “maternity” leave which the latter was demanding according to equal treatment between the sexes. The Judges thus confirmed the German regulation which encourages women, eight weeks after giving birth, to request additional leave until the child is six months old; this leave is remunerated, the women receiving an allowance equivalent to her salary (but with a maximum of DM 25/day). The Judges said that this leave was a social protection for the mother, which only she alone may receive. The Judges said that the EEC Directive of 1976 on “equal treatment between the sexes” in employment and working conditions, upon which Mr. Hofmann based his argument, “does not impose upon the Member States the obligation to alternatively permit such leave to be granted to the father, even when both parents agree”. This was the case in this affair: the mother agreed to give up her leave to the father of her child. The question was that of knowing what was the nature of the leave. According to Mr. Hofmann, this maternity leave did not concern protection of the mother’s health, but care of the child. The Commission had supported Mr. Hofmann’s request, saying that in many Member States social legislation is leaning towards the granting of “parental leave” or “educational leave” which, the Commission says, are preferable to granting leave for the mother alone. The Court of Justice did not follow this reasoning: “maternity leave”, according to the Judges, “may only be legitimately granted to the mother, with the exclusion of all other persons, in consideration of the fact that the mother alone may be subject to undesirable pressures to prematurely resume her work”. The Court added that the EEC Directive of 1976 on equal treatment between men and women “was not concerned with settling questions relating to family organisation or modifying the distribution of responsibilities between a couple”.

130. The proposed Directive requires Member States to introduce judicial or quasi-judicial systems to enable those with grievances under the Directive to pursue their claims. To be consistent with procedures already established under existing equality legislation this would seem to imply, in the Joint Committee’s view, that the Labour Court would be accorded a role to play in this regard. In this connection the Joint Committee notes that the Report of the Commission of Inquiry on Industrial Relations points to the difficulties experienced by the Labour Court arising from the conflict between the Court’s central dispute solving role and its quasi-judicial functions under recent statutes. The Discussion Document on Industrial Relations Reform suggests that the determination of cases under employment equality legislation might be transferred from the Labour Court to the Employment Appeals Tribunal and that the equality officer service might be attached to a proposed Labour Relations Commission as an independent unit. However, the Joint Committee also notes that in their policy statement¹ in June last the Employment Equality Agency recommended that the Labour Court be retained as the proper forum for the hearing of appeals from Equality Officer recommendations on equal pay and employment equality cases.

The Joint Committee trusts that all these issues will be given careful consideration.

(f) Proposal for a Council Directive on the implementation of the principle of equal treatment for men and women in occupational social security schemes²

Introduction

131. On 19 December, 1978 the Council adopted a Directive on the progressive implementation of the principle of equal treatment for men and women in matters of social security. This Directive, which applies only to statutory schemes, lays down in Article 3 (3) that, “with a view to ensuring the implementation of the principle of equal treatment in occupational schemes, the Council, acting on a proposal from the Commission, will adopt provisions defining its substance, its scope and the arrangements for its application”.

Occupational schemes fall between statutory social security schemes and purely private insurance contracts. Unlike the former, their content is not therefore defined by law: but unlike the latter, it is not defined, either, by free negotiation between individuals and the insurance companies. These features apply to various types of scheme whose purpose is to supplement the benefits provided by statutory social security schemes (in the area of old age/survival, unemployment, invalidity, sickness) or, more rarely, to replace them. They include:

—schemes based on collective agreements between employers’ and workers’ representatives and applying to an undertaking, an occupational sector or several such sectors;

—company schemes, set up or planned unilaterally by the employer for the benefit of his workers or certain categories thereof, whether he allocates specific reserve funds for this purpose or uses the services of an insurance company (group insurance, for example) or finances the planned benefits under the heading of staff expenditure;

—schemes set up by the representatives of a self-employed occupation (craftsmen, doctors, lawyers, etc).

132. The new legal instrument proposed by the Commission concerns all these types of schemes. It should be noted that the basic distinguishing feature of occupational schemes—unlike, for example, purely individual insurance—is that affiliation to such schemes forms part of the conditions of employment in the sense that it derives, directly or indirectly, from the contract of employment or from the exercise of the occupational activity.

133. It may be noted, first of all, that there are two reasons why women benefit proportionately less than men from occupational schemes; the first is that such schemes are often lacking in firms employing chiefly female labour because of traditional ideas of the respective roles of men and women in society.

The second reason is the exclusion of part-time work from many occupational schemes. While this does not constitute direct discrimination, it affects women to a greater extent and is therefore more unfavourable to them.

134. These two factors, which partly explain the present situation, appear therefore to be incapable of solution by direct measures aimed at removing discrimination based on sex but must be solved by broader social protection measures. One such measure, the social protection of part-time work, which forms the subject of a draft Directive, will have the effect of affording to part-time workers protection equivalent to that afforded to full-time workers, thereby remedying, indirectly, the unfavourable position of women mentioned earlier. The Joint Committee hopes to report on this proposal in the near future.

Direct measures aimed at eliminating forms of discrimination are required, however, in the other cases, particularly in a whole range of relatively frequent instances of unequal treatment which it was thought should be set out in the draft Directive.

135. A two-year period was set for the elimination of such discrimination. However, as regards pensionable age and surviving spouses’ pensions, Member States may defer compulsory application of the equal treatment principle, under specific conditions, in view of the special link in these two fields between the provisions of occupational schemes and the corresponding provisions of statutory schemes. The Commission is, moreover, shortly to submit to the Council its proposals aimed at settling the matters at present excluded from Directive 79/7/EEC and the present Directive.

136. On account of their complexity and their relation to the statutory social security system, occupational schemes were not taken into consideration in the Directive of 10 February, 1975 on equal pay. They were also disregarded in the drafting and subsequent adoption of the Directive of 19 December, 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. The present draft Directive thus fills a gap and will thereby help to bring clarity and legal certainty to an area in which the application of the principle of equal treatment is still often subject to doubt for both workers and employers.

Consideration of Commision’s Proposals

137. The Commission’s proposals will supplement the existing Directive on equality in statutory social security schemes and will thus help to improve the situation of working women.

The principle of equal treatment embodied in the draft Directive implies “that there shall be no discrimination whatsoever on the basis of sex, either directly or indirectly, by reference in particular to marital or family status especially as regards:

—the scope of the schemes and conditions of access thereto;

—the obligation to contribute and the calculation of contributions; and

—the calculation of benefits”.

It will no longer be acceptable to have, for instance:

—different retirement ages based on sex;

—different conditions for the granting of benefits or restrictions of such benefits to workers of one sex only; and

—to specify, directly or indirectly, on the basis of sex those persons who may participate in the scheme.

138. Occupational schemes, the subject matter of the draft Directive, are described by the Commission as schemes falling “between statutory social security schemes and purely private insurance contracts”. They include schemes based on collective agreements, company schemes and schemes set up by the representatives of a self-employed occupation such as craftsmen, doctors, lawyers, etc. The basic distinguishing feature of occupational schemes is that application to such schemes forms part of the conditions of employment in that it derives, directly or indirectly, from the contract of employment or from the exercise of the occupational activity. The draft Directive is intended to apply to all workers, whether employees or self-employed, and prohibits any discrimination on the basis of sex or marital or family status.

Views of the Joint Committee

139. The Commission noted that women tend to benefit proportionately less than men from occupational schemes. Two reasons were put forward for this—firstly, occupational schemes are not usually operated in firms employing chiefly female labour because of traditional ideas of the respective roles of men and women in society and secondly because of the exclusion of part-time work from many occupational schemes. As women form the bulk of part-time workers, they are affected to a greater extent as a consequence. These factors would need special measures to deal with this hidden form of indirect discrimination, and can possibly only be solved by broader social protection measures. One such measure would be a Directive on the protection of part-time workers. The Joint Committee is, accordingly, very pleased that the Commission has drawn up a draft Directive protecting part-time workers and feels that only a Directive on this issue would bind member Governments to introduce legislation which would ensure that part-time workers would be guaranteed the same rights as full-time workers on a proportionate basis in the areas of remuneration, holiday entitlements, retirement benefits, etc. Unfortunately, the proposed Directive on part-time workers has been consistently opposed within the Member States and it would now seem that a Recommendation in this area rather than a binding Directive may result. The Joint Committee regrets this development and hopes that the current proposal relating to occupational schemes will be accepted as a desirable and necessary progression in this area.

140. To avoid misunderstanding and disputes, Article 6 of the draft Directive enumerates provisions which would be contrary to the Directive and includes the following:

—to specify the participants and fix the compulsory or optional nature of their participation; and

—to fix different rules and conditions for one sex only, including different retirement ages and rights in relation to maternity or family leave.

Some of the matters listed have, in fact, formed the basis for complaints of discrimination on grounds of sex or marital status contrary to the provision of the equality legislation operating in this country. The Employment Equality Agency has, over the years, actively assisted claimants to pursue their legal entitlements in these areas particularly in regard to survivors’ benefits, problems arising with maternity related illnesses and other discriminatory aspects of company pension and sick benefit schemes. Mainly due to the Agency’s advice and promotion of equal opportunities in employment matters, the discriminatory aspects of occupational schemes, particularly in the public sector, have now been eliminated so that these schemes can comply fully with the articles and criteria of the proposed Directive. The Joint Committee sees this as a very welcome development.

141. Article 9 of the draft Directive makes provision for deferment of compulsory application of the Directive in two areas:

—pension age applicable; and

—pension for surviving spouse.

The Commission recognises that there may be problems for some Member States in these two areas, in that equal treatment has not yet been fully introduced into the statutory schemes. It was, in the circumstances, considered advisable to defer compulsory application of the principle of equal treatment to occupational schemes until such time as the principle has been incorporated into statutory schemes. However, where equal treatment is already accorded in statutory social welfare schemes (as applies in Ireland where old age pension age is the same for men and women), this leeway in regard to occupational schemes may not be allowed.

It is probable that the pension age, as applied to males and females, is different in some company occupational schemes in this country — often retirement age for women is 60 years as against 65 for men.

It is the Joint Committee’s view that this is discriminatory and that a claim alleging discrimination under the equality legislation (both the 1974¹ and 1977 Acts) could well be sustained. However, the matter has not, to date, been tested under our legislation.

142. Article 10 of the draft Directive relates to the calculation of benefits based on actuarial calculations according to the sex of the worker, and problems that may arise in this area in contracts entered into prior to the implementation of the draft Directive, when adopted. The Article stipulates that the future effects of such contracts and situations will be governed by any new legislation arising under the proposed Directive. The Joint Committee recommends that these matters be borne in mind and any problems relating to the level of benefits for workers of both sexes, be sorted out as early as possible.

143. The Joint Committee would strongly advise members of the public who may feel they have suffered discrimination in this area on grounds of their sex or marital status, to refer a claim to the Labour Court for investigation under the equality legislation. This advice would obtain until possibly more suitable modes of redress are made available under legislation to be enacted to comply with the draft Directive when it is adopted by the Council.

Conclusion

144. The implementation of the proposed Directive would involve the enactment of new Irish legislation. Hitherto direct Government action in relation to occupational schemes has been largely confined to the provision of tax reliefs for occupational pension schemes. In the context of proposals for a National Pension Plan the Minister for Social Welfare has indicated his intention to establish a Pensions Board. It is envisaged that the Board would have an important role in achieving equality of treatment in occupational pension schemes.

145. The draft Directive has wide implications for occupational schemes and Member States must take all measures necessary to ensure that provisions contrary to the principle of equal treatment are rendered null and void and amended. Under the Directive discrimination would be outlawed in relation to:

—access to membership of schemes;

—age or service conditions;

—refunds of contributions on leaving;

—conditions for receipt of pensions including retirement age;

—maintenance of pension rights during maternity leave;

—actuarial calculation of benefits and contributions; and

—preservation or transfer of benefits.

146. While there is no comprehensive information available on occupational social security schemes in this country it is known that many occupational pension schemes have different conditions for men and women although some improvements have probably been made in this regard following the Anti-Discrimination (Pay) Act, 1974.

The Department of Social Welfare has undertaken a major detailed survey of occupational pension and sick pay schemes and the result of this survey (expected in early 1985) will enable the effects of the proposed Directive to be more accurately assessed.

147. It is difficult at this stage to assess the time for consideration of the proposal by the Communities Institutions. The matter has not yet been discussed at the Social Questions Group of the Council and the complexity of the proposals, in particular issues regarding different technical actuarial calculations for men and women, would indicate a relatively long period of examination and debate. Irish employers’ and pensions’ industry representative organisations have indicated that the time-scale for implementation of the proposed Directive should be such as to allow the necessary changes in occupational schemes to be accommodated without undue financial or other disruptions — a transitional period of 5 years was suggested.

(g) Interim Report on the application of Directive 79/7/EEC of 19 December, 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.¹

Introduction

148. The Interim Report is based on the interim reports submitted by the different Member States regarding the progressive implementation of the Directive, and the problems which have arisen. The Interim Report also deals with questions of interpretation (indirect discrimination) and the problems in general posed by the substantive scope of the Directive.

149. The Interim Report endorses the opinion of the Advisory Committee on Equal Opportunities for Women and Men. This relates to:

1. (i) cash benefits which should be the same for both sexes; and

(ii) benefits which must be granted to either spouse (if both are insured) and old age pensions which should not be granted on the basis of the age of one spouse only.

2. “social assistance benefits” which come within the scope of the Directive.

3. Where the right to health care is granted to the spouse of the insured person, the conditions must be the same for either spouse.

4. The use of authorised exceptions (Article 7) must be justified.

5. No steps backward in any national measures are allowed.

150. The Commission gives guidelines for the interpretation of the notion of indirect discrimination — stating that these terms should be interpreted as referring to hidden discrimination which might in practice affect workers of one sex as a result of marital or family status being taken into account in determining the rights covered by the two Directives (76/207 and 79/7).

The Commission feels that indirect discrimination may be presumed where a measure which is apparently neutral in fact predominantly affects workers of one sex, without it being necessary to establish that discrimination was intended. On the contrary it is for the person applying the measure presumed to be discriminatory to provide proof that it was objectively justified and did not involve any intention to discriminate.

Consideration of Interim Report

151. EEC Directive 79/7/EEC adopted by the Council of Ministers on 19 December, 1978 provides for the progressive implementation of the principle of equal treatment as between men and women in the matter of social security. In compliance with the terms of the Directive all discriminations as between men and women must be eliminated by December, 1984.

The Directive applies to statutory schemes providing protection against sickness, invalidity, old age, accidents at work and occupational diseases and unemployment and social assistance in so far as it is intended to supplement or replace such schemes.

152. The Interim Report deals with problems connected with the application of the Directive and also contains the views of the Commission in connection with questions of interpretation, particularly as regards indirect discrimination taken in Member States to implement the Directive before the 22 December, 1984 deadline. The Interim Report as such has no implications — any obligations arising stem from the Directive itself.

In the case of Ireland the report accurately outlines the matters yet to be resolved. The remaining areas in the social welfare code which are discriminatory within the terms of the Directive relate to married women.

153. In relation to personal entitlements married women, other than married women living apart from and unable to obtain any financial assistance from their husbands or married women entitled to an increase of benefit for a child or husband, are discriminated against in that—

(i) they qualify for lower rates of benefit than men in the schemes of disability benefit, unemployment benefit, invalidity pension and occupational injuries benefits (injury benefit, disablement pension and gratuity and unemployability supplement),

(ii) they can only receive unemployment benefit for a maximum of 312 days as against 390 days generally,

(iii) they are effectively debarred from the unemployment assistance scheme. (For a married woman to qualify for unemployment assistance either her husband must be dependent on her or she must not be a dependant of his).

154. In the matter of increases in respect of a spouse the conditions under which married women can receive increases in respect of their husbands are more stringent than those applicable to married men seeking increases for their wives. A married man can qualify for an increase in respect of his wife if she is living with him or if she is wholly or mainly manitained by him but a married woman can qualify for an increase for her husband only if he is an invalid and is wholly or mainly maintained by her.

Similarly in the matter of increases in respect of dependent children a married man can receive an increase if the children are normally resident with him whereas a married woman can receive such an increase only if her husband is an invalid and is wholly or mainly maintained by her.

Views of the Joint Committee

155. The issue of how dependency is treated, in the view of the Joint Committee, is crucial to how the EEC equal treatment Directive (79/7/EEC) is implemented in Ireland. It remains the predominant social assumption in Ireland (as also, to a lesser degree, in other European countries) that women are and should be supported by men while they care for their children and their homes. The application of dependency requirements for unemployment assistance in Ireland effectively implies that a differential level of treatment is accorded to one particular group of workers — women. The Employment Equality Agency is regularly informed of instances where women with children are refused unemployment benefit on the grounds that they are not available for work because they have young children. Whereas questions about child care arrangements may in principle be asked equally of men and women, the practice of applying such tests should be scrutinised, in the Joint Committee’s view, for the degree to which it reflects the assumption that many women, particularly married women, are not available for work.

156. Married women are a particularly vulnerable group because their traditional economic dependence on their husbands, and the sexual division of labour in the home, means that theoretically such women have a choice as to whether they work or not, a choice which is available or at any rate exercised by very few men. The Joint Committee discounts the contention that women do not necessarily need to work, and those who express the intention to do so can be defined as different, unusual or selfish in their competition for scarce jobs. Although there are some minor concessions made to those women who must support their families by themselves and a grudging acceptance that without a second income the proportion of families living in poverty would be much larger, the argument about women and work has, nonetheless, been forced to take place within the parameters of the assumption that men are breadwinners and women do not have to be.

157. The Joint Committee would like to draw attention to a recent study by Welsh Women’s Aid of the piloting in the United Kingdom of new availability for work tests as recommended in the Rayner Report¹.

The authors concluded that the concept of availability for work was not a clear-cut one. The practical application of this concept, which has been current for more than half a century, depends on social attitudes to work and on understandings current in society as to why different categories of people do or do not work and should or should not work. In particular married women’s relation to and need for work is viewed differently in our society from that of men’s. This leaves married women relatively open to suspicion in assessing availability for work and serves to maintain a pattern of inequality of opportunity and the relative invisibility of women in the workforce.

158. The Joint Committee feels that it might be useful at this stage to quote from a study of the Rayner Test:²

“The facts of many married women’s lives at present are that they are not as available for work as men because of the position they hold within the family — part-time work and a pattern of entering and leaving the labour market suits women if they are to continue to have a major responsibility for child and home care. This means it makes sense for some women to say—

‘I don’t really want to work but we need the money so I’m trying to find a job’

They are in effect saying at the same time—

‘I want work and I don’t want work’

—whereas fewer men have the option to express that dilemma. And in terms of assessing women’s availability for work, their apparent ‘choice’ can be easily held against them. Their declared intention of a need to work, whatever the reason, is converted into something less than wholehearted and so open to suspicion, particularly when unemployment is high.”.

159. The Joint Committee considers that the concept of adult dependency in the Irish social welfare code should be abolished. The family status of an applicant for unemployment benefit or assistance should not be used in connection with an application. Questions on arrangements for dependants (children, elderly or handicapped) and any other questions which have a discriminatory effect on women’s qualification for assistance (and indirectly their access to jobs for which being on the Live Register is a necessary condition) should be excluded in the Joint Committee’s view.

160. The Joint Committee is disappointed at the limited priority which the Government has accorded to the recommendations of the Working Party on Child Care Facilities for Working Parents. The absence of formal child care arrangements means that women have to rely on their relatives to help or otherwise on often unsatisfactory services and anyway may not be able to finalise arrangements until they find a job. The fact that they hold the responsibility for finding care for their children while they work, and that this can be problematic in a society which does not yet give any priority to resources for community child care makes them particularly vulnerable at a time when unemployment is high and when Government spending on social services is being severely contained.

161. The Joint Committee would like to make the following specific recommendations in relation to equal treatment for men and women in matters of social security.

(i) The concept of adult dependency should be abolished;

(ii) Questions on availability should only be asked at National Manpower Service offices in connection with fitting people for jobs or providing opportunities for training, etc. Questions on arrangements for dependents which could have a discriminatory effect on women should be excluded;

(iii) The tendency to define availability in relation to full-time work only should be resisted;

(iv) There must be recognition that part-time work is real work and all statutory rights should be extended to part-time workers;

(v) The Commission should have regard to the desirability of conducting regular and frequent surveys to assess the extent of unregistered unemployment;

(vi) the Commission should review the progress in implementing the recommendations of the Working Party on Child Care Facilities for Working Parents and should emphasise that sufficient resources be given to the provision of child care in the community during hours which make it possible for all parents to take up paid employment;

(vii) The Departments of Labour and Social Welfare and their agencies should maximise access to free information about job vacancies and opportunities to undertake training courses.

Conclusion

162. The Employment Equality Agency as the main instrument for pressure to bring about equality of opportunity in employment matters generally, has a direct interest in this Directive which applies to the working population both male and female, i.e. wage earners or self-employed persons as well as workers whose activity is interrupted by illness, accident or involuntary unemployment, persons seeking employment and retired or disabled workers. The principle of equal treatment means for the purposes of the Directive, that there shall be no discrimination whatsoever on the grounds of sex, either directly or indirectly, by reference in particular to marital or family status. Although the Directive covers most legislative aspects such as scope of schemes, conditions of access, the obligation to contribute and the calculation of contributions, the calculation of benefits (including increases due in respect of a spouse and/or dependants) and the conditions governing the duration and suspension of benefits, certain exceptions are allowed. These mainly relate to retirement age, social advantages granted to persons who have brought up children, and increases in long-term benefits (invalidity, accidents at work, old age) for a dependent spouse.

163. As already indicated the concept of dependency (whereby women are generally considered as dependents of their husbands, irrespective of whether or not they earn an income in their own right) is crucial to the discussion of equality under the social welfare code. The Joint Committee is concerned to see that all such discriminatory rules and practices are eliminated at an early date and preferably before the final implementation date of all articles set out in the Directive on statutory social welfare schemes — 19 December, 1984.

164. The Joint Committee draws attention to the following areas of discrimination against one sex or the other, or on marital status:

In addition there are certain areas where women only benefit:

—maternity benefit (outside the scope of the Directive)

—contributory widows’ pension

—non-contributory widows’ pension

—deserted wife’s benefit

—prisoners wives’ allowance

—unmarried mothers’ allowance

—allowance for single women aged between 58 and 66 years.

There is no equivalent allowance for men in these areas. Consequently, if no benefits apply to men in similar circumstances it would seem, in the Joint Committee’s view, that direct discrimination occurs.

165. With regard to the last category above the Joint Committee considers the following points relevant:

The social assistance allowance was derived from the unemployment assistance allowance. The introduction of this allowance in 1974 would appear to have conferred no real benefit on the applicant, in that she would probably qualify in any event for unemployment assistance (means tested) until such time as she qualified for a retirement or old age pension allowance. Also an upper age limit of 58 years is a necessary prerequisite for this allowance. The only concession gained is that the single woman in this situation is not obliged to fulfil the condition of being available for work and signing on weekly at the Employment Exchange which, in turn, has the additional value of removing her from the unemployment register.

The main discrimination occurs, in the Joint Committee’s view, in the years when the single woman is actually caring for an aged incapacitated relative, as the carer in such circumstances gets no personal payment, though the relative being cared for may qualify for a prescribed relative allowance. There is no way of ensuring that the carer gets any of this allowance. Meanwhile the State is saved a considerable sum by not having to provide institutional care for the old and infirm person. On the death of the relative a single woman is only eligible for one of two long-term benefits already mentioned (unemployment assistance or social assistance allowance) for single women aged 58-66 years.

166. In regard to the social assistance allowance, the discriminatory aspects of this allowance are, in the opinion of the Joint Committee, as follows:—

(i) An upper age qualification of 58 years applies, as opposed say to 40 years for eligibility for a deserted wife’s allowance unless there are children to be maintained. No age limit applies to a non-contributory widow’s pension; and

(ii) The means allowance is only £1.00 per week as opposed to £6.00 per week allowance for other categories and is subject to “benefit and privilege” for assessment of means, i.e. her board for any single woman living in a household.

To remedy these inequalities the Joint Committee thinks it necessary for the State to recognise the work being carried out by those caring on a full time basis for relatives at home and to make proper financial awards for this work. This could be tackled (i) by the establishment of the position of domiciliary carer to work in conjunction with the public health service and to be part of the local community care organisation, (ii) on the establishment of such a grade of worker to have the prescribed relative allowance abolished and (iii) in the interim, to have the conditions attaching to a social assistance allowance brought into line with those governing other category allowances.

167. Another discriminatory aspect of the allowances referred to at paragraph 5 above is, in the Joint Committee’s view, the waiving of the employer’s share of PRSI contribution in respect of employment of persons in these categories.

168. There may be an element of discrimination in the priority order of social welfare payments, e.g. payment of children’s allowances to the mother. There may also be direct discrimination in favour of men where, for instance, they are automatically assumed to be the “head of the family”.

In the view of the Joint Committee these forms of discrimination could, perhaps, be eliminated if—

(i) only one parent was deemed (for whatever reasons) to fulfil the requirements for the benefit or where both parents could meet the requirements, a right of choice is given (between them). If the latter is not possible for different reasons, the beneficiary should be determined in advance. It may well prove to be that the benefit paid is more favourable for one than for the other.

(ii) the various arrangements for payment of allowances and benefits covering women who are basically in the same position are replaced by a one parent family allowance regardless of the status of the persons concerned.

169. The rules and procedures necessary in establishing availability for work should be uniform for all. The fact that a woman has young children should not, in the Joint Committee’s view, automatically be assumed to be a valid and sufficient reason that she is not available for work outside the home and thus does not qualify for benefit. The assumption that a married woman is not available for work, the assumption being made because of her marital status, is totally unfair, unjustified and discriminatory. These anomalies will require modification in order to meet the principle of equal treatment together with any other areas of discrimination on grounds of sex and/or marital and family status, not identified here.

170. The Joint Committee recognises that considerable problems arise when and where marital breakdown occurs. The reality of marital breakdown is not accepted or recognised in the social welfare system. Those symptoms of the problem which are addressed through “discriminatory treatment” arise mainly because of dependency assumptions which are no longer justified. This is an area that the Joint Committee on Marriage Breakdown will, no doubt, direct its attention to in the course of its deliberations.

171. Finally it may be argued that no reform of the social welfare code can be undertaken without reforming the tax system as both are so closely linked. However, the deadline for full implementation of the Directive on social welfare schemes (December, 1984) makes it imperative to carry out necessary reforms in this code immediately.

C. GENERAL OVERVIEW

172. In this wide-ranging Report the Joint Committee has attempted to bring together and examine critically the Community measures, proposed and adopted, to ensure equal treatment for women (and men). At present there may be misgivings among some about our membership of the European Communities. Some may attempt to attribute, rightly or wrongly, our economic ills to that body. In any event, the Joint Committee is convinced that it cannot be gainsaid that the Community plays a dominant role in the promotion and enforcement of equal treatment for women.

173. The Community has brought about changes in employment practices which might otherwise have taken decades to achieve. Irish women have the Community to thank for the removal of the marriage bar in employment, the introduction of maternity leave, greater opportunities to train at a skilled trade, protection against dismissal on pregnancy, the disappearance of advertisements specifying the sex of an applicant for a job and greater equality in the social welfare code. After farmers, Irish women in employment have probably benefited most from entry to the EEC.

174. The Community’s longstanding commitment to the improvement of the situation of women has established it as a pioneer and innovator in this field. The task of achieving equal treatment and equal opportunities for women and men in society, and particularly in employment, is inevitably long and complex. The Community has a responsibility to sustain its commitment and carry forward its activity, building on its achievements to date and adapting its policies in the light of economic and social development. The new Action Programme is designed to achieve that purpose.

175. When the EEC was founded women’s issues were as much to the fore as they are today in relation to Community policy. Article 119 of the Treaty of Rome lays down that from the beginning Member States should give effect to the principle that men and women should receive equal pay for equal work. From the authority of this Article has sprung an impressive range of measures developed to redress traditional inequalities faced by women in the labour market. The prominence of women’s affairs when other issues have languished is in part due to the impact of the women’s movement and in part to the commitment and imagination of those responsible for social affairs in the Commission⁽¹⁾.

176. In 1981 the Commission reported that it found appreciable progess had been made in law but that in practice the recession had resulted in job losses for women. The gap between men’s and women’s earnings, which had begun to narrow, is widening again. The Commission has also had to remind Member States of their obligations under the equal opportunity Directives which flowed from the Community’s first Social Action Programme (1973). In 1980 the Commission warned Ireland that exclusions in the Employment Equality Act, excluding men from training as midwives and prohibiting mixed nursing of psychiatric patients, contravened Community legislation. These anomalies have since been removed. In 1983 a spokeswoman for the Commission said that the system of recruiting women into the Gardaí was under scrutiny because it may be too restrictive and discriminate against women.

177. In the course of its consideration of the Community measures dealt with in this Report the Joint Committee could not but be impressed by the pivotal role being played by the Employment Equality Agency in promoting and maintaining womens’ rights in the work-place. The Joint Committee reiterates its recommendations about the financial resources and staffing levels available to the Agency. Anything that would impede the work of the Agency could only halt the onward march of the campaign for the rights of women.

To the Chairperson of the Agency, Ms. Sylvia Meehan, the Chief Officer, Mr. Paul Cullen, and the Staff of the Agency, the Joint Committee offers its congratulations.

178. The Seanad has renewed the procedure for debating Reports of the Joint Committee which was available to its predecessors. The Joint Committee is particularly pleased that the present Order, made on 13 September 1984 will cover the period up to the end of the present Seanad. Previous Orders in the Seanad (and also in the Dail) were for limited periods and this gave rise to lacunae between the renewing of Orders during which Reports of the Joint Committee might not be discussed. A request for a similar procedural arrangement in the Dail is before the Committee on Procedure and Privileges of that House and will be considered shortly when the Joint Committee hopes the outcome will be as favourable as the arrangement in the Seanad.

179. The Joint Committee, in view of the importance it attaches to the issues discussed in this Report, makes a specific request to have it debated in the Seanad and Senator Robinson, whose Sub-Committee examined the Community measures, will, on behalf of the Joint Committee, table a motion in the Seanad very shortly for this purpose.

180. In the course of his attendance at the meeting of the Joint Committee on 12 September, 1984 the Minister for Labour indicated his willingness to attend a meeting of the Joint Committee later in the year to give members a report on the progress of social affairs matters during the Irish Presidency of the European Council. This acknowledgement at Government level of the role of the Joint Committee, on behalf of the Dail and Seanad, is especially appreciated in view of the competing demands on the Minister’s time, particularly chairing meetings of the Social Affairs Council. The Minister’s co-operative attitude more than adequately counter-balances certain difficulties the Joint Committee has experienced recently with the attendance of Civil Servants before it.

GERARD COLLINS T.D.

Chairman of the Joint Committee

17 October, 1984.

¹84/C161/02.

²(O.J. No. C186, 21 July, 1982).

¹Com (84) 57 final.

¹Com (84) 57 final (2).

²Com (81) 758 final.

¹Council Directive 75/117/EEC of 10 February 1975, OJ L 45/19 of 19 February 1975.

²Council Directive 76/207/EEC of 9 February 1976, OJ L 39/40 of 14 February 1976.

³Council Directive 79/7/EEC of 19 December 1975, OJ L 6/24 of 10 January 1979.

¹Com (81) 758 final — action 5.

¹Seventeenth Report (Second Joint Committee) dated 28 June, 1978 (Prl. 7276).

¹Com (84) 234 final.

¹Women in the Irish Civil Service by Ms. Ita Meehan —— published in Seirbhis Phoiblí (Journal of the Department of the Public Service —— Vol. 4, No. 2, Nollaig, 1983).

¹Reprint of a seminar held under the auspices of the Employment Equality Agency, Dublin, November 1981.

²Com (83) 781 final.

¹“Pregnancy Rights and Maternity Protection in Ireland and the EEC” — a contribution made to the Employment Equality Agency Seminar held in Dublin on 29 and 30 October, 1982” by Julie MacFarlance.

¹Com (83) 686 final.

¹O.J. No. C 50, (11 February, 1981), point 22.

²Resolution “embodying the Opinion of the European Parliament on the proposal from the Commission of the European Communities to the Council for a draft resolution containing a new Community action programme on the promotion of equal opportunities for women” adopted at the meeting on 12 May, 1982.

¹The last such survey was undertaken by the Irish Productivity Centre in 1975 — “Absenteeism in Irish Industry” by Colm A. O’Muircheartaigh.

¹“The Role of the Labour Court in Enforcement Procedure under Equality Legislation — Recommendations for Change”

²Com (83) 217 final.

¹Anti-Discrimination (Pay) Act, 1974.

¹Com (83) 793 final.

¹“Payment of Benefits to Unemployed People” (HMSO 1981).

²Available for Work? A study of the Rayner Test of Availability for Work in Cardiff, Ebbw Vale and Leeds. Welsh Women’s Aid (July, 1982).

¹Inside the EEC (An Irish Guide) — Ruth Barrington and John Cooney (The O’Brien Press).