Equality Report_ ADC 2009 - CPSU EQUALITY REPORT by liwenting

VIEWS: 23 PAGES: 13

									     CPSU

EQUALITY REPORT


 THERESA DWYER,
EQUALITY OFFICER


ANNUAL DELEGATE
  CONFERENCE

     Galway
      2009




                   1
Dear Delegates,

The following report is a summary of the work on the Union‟s equality agenda
with the Department of Finance, the Irish Congress of Trade Unions and its
European level over the last 12 months.

   1. EQUALITY AND RIGHTS ALLIANCE

The Equality and Rights Alliance (ERA) was formed in August 2008 in response
to reports that the Government intended to merge the five Equality and Human
Rights Bodies – Equality Authority, Equality Tribunal, National Disability
Authority, the Data Protection Commissioner and the Irish Human Rights
Commission. The ERA which is made up of groups including the ICTU, Irish
Council for Civil Liberties, Age Action, Women‟s Aid, Students Union of Ireland,
Amnesty International etc. seek to promote human rights, equality and social
justice in Ireland. The Government in Budget 2009 did not amalgamate the five
Bodies but made the following changes.

          -   The Combat Poverty Agency was subsumed into the
              Department of Social & Family Affairs.
          -   The National Consultative Committee on Racism and Inter-
              culturalism (NCCRI) was abolished.
          -   The budget of the Irish Human Rights Commission was cut by
              24%.
          -   The Equality Authority’s budget was cut by almost half at 43%.
          -   The Decentralisation of the Equality Tribunal was to be fast
              tracked to Roscrea at a time when it had been slowed down for
              most other Departments and Offices.

The ERA believes that these actions diminish the ability of these agencies to do
the work they were set up to do which is to support and defend equality rights
and social justice on behalf of citizens living and working in the state. Further
information is available on www.eracampaign.org

2. CIVIL PARTNERSHIP BILL

The Civil Partnership Bill was introduced in 2004 but little progress was made
until 2008 when on 24th June the Minister for Justice, Equality and Law Reform
approved the Heads of the Bill which are now been drafted by the office of the
Attorney General. The purpose of the Bill is to establish a statutory mechanism
for registration of partnerships and set out the duties and responsibilities of
registered partners and the consequences of dissolution of such partnerships.
The main provisions of the Bill are:-

      1) A scheme of civil registration of same sex partners together with
         a range of rights and duties consequent on registration.


                                                                               2
      2) Access to a co-habitants redress scheme giving protection to a
         vulnerable party at the end of a long term opposite sex or same
         sex relationship.
      3) Recognition of cohabitant agreements enabling cohabitants to
         regulate their joint financial affairs.

The main affects of the proposals are:-

         To create new legal relationship for same sex couples which may
          end only on the death of a partner or dissolution by a Court.
         To make detailed provision for the formalities and procedures for
          registration of civil partnerships.
         To give effect to a range of property, financial and other matters
          consequent on civil partnership including in relation to
          maintenance, shared homes, succession, taxation, social welfare
          schemes and pensions.
         To provide co-habitants with a safety net of a redress scheme in
          the event of economic vulnerability at the end of the relationship.
         To give legal certainty to agreements regulating the financial
          affairs of co-habitants and labelling them if they choose to opt out
          of the redress scheme.

This Bill is expected to provide a legal framework for the recognition of
relationships outside marriage both heterosexual and homosexual. It will address
matters of injustice in terms of pensions, social welfare and succession rights of
children of such union. Under this legislation civil partnerships will mirror
marriage in that such unions can be dissolved only after both parties are apart for
a period of years. However, the new Act does not appear to confer any rights on
same sex couples in terms of adoption.

3. AGENCY WORKERS DIRECTIVE

For some time now the European Commission has sought to create an equitable
working environment for temporary agency workers across the EU. The current
number of agency workers across the EU stands at approximately 8 million and
the numbers are increasing. In March 2002 the European Commission adopted a
proposal on agency workers but it was only recently that progress through
political agreement has been achieved. The agreement between member states
seeks to balance improved rights for agency workers and allow a working week
of over 48 hours. The draft Directive must now go before the European
Parliament for consent before member states are required to transpose these
rights into national law. Member states are usually given a time limit of two years
within which to transpose the Directive. Up to now agency workers got less pay,
have less security and worse terms and conditions than permanent workers.
They have no sick pay, no pension and no maternity pay from their employer.
They do not have the same means of redress for pay and conditions of


                                                                                 3
employment through the equality legislation as other workers. This is because
they cannot compare themselves to the people they are working with, they can
only compare themselves to another agency worker. The main points of the
agreement on the Agency Worker Directive are:

      1) Equal treatment as of day one for temporary agency workers as
         well as regular workers in terms of paid maternity leave and leave.
      2) Possibility to derogate from this through collective agreements
         and through agreements through social partners at national level.
      3) Temporary agency workers to be informed about permanent
         employment opportunity in the user enterprise.
      4) Equal access to collective facilities i.e. canteen, childcare
         facilities and transport services.
      5) Member states have to improve temporary agency workers
         access to training and childcare facilities in periods between their
         assignments so as to increase their employability.
      6) Member states have to ensure penalties for non compliance by
         temporary agencies and enterprise.

Protections from discrimination for employees based on their contract of
employment are already a feature of employment law in Ireland. The “non
discrimination” principle applies in respect of fixed term workers through the
Protection of Employees Fixed Term Work Act 2003 and in respect of part-time
workers to the Protection of Employees Part-Time Work Act 2001.

4. PARENTAL LEAVE AND FORCE MAJEURE LEAVE

Parental leave and Force Majeure leave are both statutory entitlements and are
provided for under the Parental Leave legislation. A new Parental Leave Circular
issued from the Department of Finance “Circular 20/2008) on 6th December 2008
that incorporated the changes from the Parental Leave (Amendment) Act 2006
which came into effect on 18th May 2006. The new circular replaces Circular
22/1998 and 22/2000 in relation to parental leave but special leave including
bereavement leave and force majeure will continue to be covered in Circular
22/1998 for now. Despite the Union‟s view that statutory leave should be covered
under the one circular the Department of Finance are proceeding to issue a
separate circular on force majeure leave and the main changes to parental leave
are:-

      1) Rising the maximum age of the eligible child from 5 to 8 years.
         This is already available in the Civil Service since 1 st December
         2003.
      2) An increase in the maximum age of the eligible child to 16 years
         in the case of a child with a disability. This is also available in the
         Civil Service since 1st December 2003.



                                                                              4
      3) Extension of parental leave entitlement to persons acting in loco
         parentis in respect of an eligible child. This is already available in
         the Civil Service since 1st December 2003. However the Act now
         includes the term “relevant parent” which is defined as (a) a
         natural parent, the adoptive parent or the adopting parent in
         respect of the child or (b) acting in loco parentis of the child”.
      4) A statutory entitlement to take the fourteen weeks parental leave
         in separate blocks of a minimum of six continuous weeks or more
         favourable terms with the agreement of the employer. More
         favourable terms are available in the Civil Service through
         collective agreement.
      5) An employee who falls ill while on parental leave and as a result
         is unable to care for the child may (a) if the period of parental
         leave has not commenced postpone the taking of the leave to
         such a time as the employee is no longer sick or (b) if the period
         of parental leave has commenced suspend the taking of the
         balance of the leave to such time as the employee is no longer
         sick.

Transfer of parental leave entitlement from one parent to another if both parents
are employed by the same employer subject to the employer‟s agreement. The
Civil Service is deemed to be the same employer irrespective of which
Department/Office a member works in.

      The main changes to force majeure are:-

         Extension of the force majeure provisions to include persons in a
          relationship of domestic dependency including same sex partners. The
          2006 Act provides that “(a) a person who resides with the employee is
          taken to be in a relationship of domestic dependency with the
          employee if, in the event of injury or illness, one reasonably relies on
          the other to make arrangements for the provision of care and (b) the
          sexual orientation of the persons concerned in immaterial”.

4.1 Review of Parental Leave

A review of parental leave and proposals for paternity leave have been taking
place under the European Social Dialogue Process in Brussels. The aim of the
Irish Trade Union represented by the General Secretary of CPSU is to have paid
parental leave as well as paid statutory paternity leave.

5. PRSI AND WORKSHARING

The rules governing PRSI contributions requires the person for whom the
contribution is made to work for at least one day in a PRSI contribution week.
The PRSI contribution week is defined as each successive period of seven days


                                                                                5
starting on 1st January each year. Members who decide to work reduced hours
by worksharing should be aware that their pattern of attendance may effect their
PRSI contributions and consequently their entitlement to social insurance
benefits.

For example, 1st January 2009 falls on a Thursday, therefore the contribution
week is from Thursday to Wednesday. This means that in order to accumulate a
full year‟s PRSI contribution (52) you must work one day each contribution week.

A person working a split week starting on a Thursday will not be PRSI compliant
because they will only accumulate the PRSI contribution every second week.
This arises because the person works from Thursday to Wednesday the first
week but does not work from Thursday to Wednesday the second week. A
person continuing to work this patter in 2009 will only work every second
contribution week achieving 26 contributions as opposed to 52.

In the Civil Service the Union negotiated an arrangement whereby members
wishing to change their pattern of attendance so as to be PRSI compliant would
be facilitated.

6. MATERNITY BENEFIT AND TAXATION

Members who go on maternity leave should note that while you continue to
receive your salary as normal from your employers you are not liable to pay tax
on the portion of your salary attributed to maternity benefit. If your employer has
not made the necessary adjustment to your salary then members should apply
for a tax refund. In order to do this you will need to provide the following
documentation:-

      1) Copy of your P.60 for the year in question with statement of
         earnings from your employer.
      2) Statement from the Department of Social & Family Affairs giving
         the amount of maternity benefit paid.
      3) A letter from your salary section confirming that maternity benefit
         was included in your gross pay.

There is a four year claim limit in that you can claim retrospectively for the
previous four years.

7. MCKENNA JUDGMENT – PREGNANCY RELATED ILLNESS

The Labour Court issued a Determination in a case taken by Margaret McKenna
against the North Western Health Board in relation to illness related to pregnancy
being treated the same as all other sick leave which can result in a reduction or
loss of pay. The judgment found that:-



                                                                                 6
         Having regard to Article 141 of the Treaty the Equal Pay Directive
          and the Employment Equality Act 1998 the rules of the sick leave
          scheme at issue do not constitute discrimination on grounds of
          sex.
         The sick leave applies irrespective of gender where either are
          absent by reason of an illness “provided that the female worker is
          treated in the same way as a male worker who is absent on
          grounds of illness and provided that the amount of payment made
          is not so low as to undermine the objective of protecting pregnant
          workers”.
         Ms. McKenna should not receive pay that is lower than the
          minimum amount to which she was entitled during illness which
          arose while she was pregnant.

The Labour Court ordered the parties to amend the terms of the sick leave
scheme and issue so as to bring it into conformity with the principles set out in
the Determination. The Department of Finance have been considering the
implications of this judgement for some time and have only now produced a draft
circular which is currently under consideration.

8. PUBLIC HOLIDAYS AND WORKSHARERS
8.1 Mornings/afternoons only and week on/week off

There is an anomaly in the Organisation of Working Time (Determination of Pay
for Holidays) Regulations 1997 Statutory Instrument 475 of 1997 regarding the
treatment of some workers in relation to public holidays.

There are nine public holidays and two privilege days in the Civil Service each
year and one Church holiday (Good Friday) giving a total of 12 holidays each
year. Workshares working a pattern of mornings only/afternoons only will on
each holiday get the benefit of the holiday which is 12 holidays at half pay.
Worksharers working a pattern of week on/week off or split week will if schedule
to work receive a full days pay and if not scheduled to work receive a half days
pay. The benefit over the year is six holidays at half pay and six holidays at full
pay. This means that over a year worksharers benefit as follows:-

      a) If working mornings only/afternoons only you get 12 holidays at
         half pay.
      b) If working a week on/week off or split week you get six holidays at
         full pay and six holidays at half pay.

Therefore the impact of Statutory Instrument 475 of 1997 is that it has a
disproportionate effect on those working in category A above when compared to
those in category B.


                                                                                 7
In 2005 the Union brought a case under these regulations before a Rights
Commissioner who ruled that while the legislation was being applied correctly an
anomaly exists and that it is more beneficial to some than to others. The Union
has tried to have the anomaly addressed in direct discussions with the
Department of Finance. But it has not been possible to find a formula that deals
with the issue while at the same time complies with the regulations. The Union
has sought assistance from ICTU in order to have this anomaly addressed.

8.2 Public Holiday Pay for Certain Categories of Worksharers

There are certain categories of worksharers who may not be receiving their
correct rate of pay in respect of public holidays.

In September 2006 the Labour Court issued a decision regarding a person who
works a four day week on the basis of a half day Monday and Friday and full
days on Tuesday, Wednesday and Thursday. The claimant in this case felt that
as all public holidays fall on either a Monday or a Friday and as he was not
required to work the second half of those days he was not receiving his
entitlements under the Organisation of Working Time Act. The employer believed
that the claimant received his full entitlement on the basis that he was given the
day off and paid as though he had worked the day in question.

The Labour Court determined that an additional amount was due to the claimant
and this amount should be calculated by reference to the average weekly
attendance of that person less the value of the time off actually received for the
public holiday. In other words “the calculation of a claimants rate of pay
…….should be an average daily rate, based on his contracted working
arrangements, i.e. one fifth of his weekly rate of pay equals 6.57 hours. However
since the complainant already works for part of that day and is therefore on paid
time off for that part of the day the Court interprets this to mean that he is
therefore entitled to be paid an extra 2.56 hours pay for such public holidays on
the basis that he is already paid four hours for those days”.

The Unions have requested that the Department of Finance issue a circular of
clarification on this matter. In the meantime any member working a pattern as
outlined above who thinks they may not be receiving their correct payment
should raise the matter with their Personnel Division in the first instance. If the
issue is not resolved it can then be raised with the Union Official responsible for
that Department/Office.

9. CIVIL SERVICE CRÈCHES

The childcare operator for the Civil Service Crèches in Mount Street and
Marlborough Street Dublin, Ennis and Cork is Nurture Early Learning Childcare



                                                                                 8
Centre which is based in Cork. The crèche facilities in Sligo, Athlone and
Backweston continue with the same childcare operators.

9.1 Cork Crèche

The new 135 place Civil Service crèche located at Bessboro Road, Mahon, Cork
opened on Monday 16th February 2009. In addition to the usual day care the
crèche will also offer after school service. The contact details are Nurture at 1890
252833.


9.2 Ennis Crèche

The Civil Service crèche in Ennis reopened on Monday 13 th October 2008. The
numbers were low initially but they have recently increased following an open
day held by Nurture Early Learning and Childcare Centre on Saturday 24 th
January 2009.

10. TERM TIME SCHEME 2009

In advertising the Term Time Scheme 2009 a number of Departments/Offices
indicated their intention to restrict temporary recruitment and higher duty
allowances for replacement staff. The Union raised this issue at General Council
outlining our concerns that any of the schemes negotiated as part of the work/life
balance agenda should be restricted in this way. It now appears that only some
Departments/Offices are proposing to impose these restrictions. The Executive
Committee are considering this matter and will make a decision shortly.

11. A POSITIVE WORKING ENVIRONMENT

It is proposed to review the Civil Service Code on Anti Bullying Harassment and
Sexual Harassment – A Positive Working Environment, to ensure that it is in line
with the changes and amendments to the Health and Safety Authority Code. A
review is due to commence in the Summer 2009.

12. FIXED TERM WORK CASES

On 4th July 2005 the Union lodged cases on behalf of six temporary Clerical
Officers working in the Passport Office as the Department of Foreign Affairs with
the Rights Commissioner Service under the Protection of Employees Fixed Term
Work Act 2003. The Union made a number of submissions on behalf of the
claimants and hearings took place on 31st August, 11th October and 25th
November 2005. Five of the claimants were in receipt of successive fixed term
contracts since 2001 and the six claimant had successive fixed term contracts



                                                                                  9
since 2002 but each of the claimants had enforced breaks during the Christmas
period. The Union argued:-

         That the claimants received less favourable treatment in terms of
          their conditions of employment based on their status as fixed
          term employees and there were no objective grounds justifying
          such treatment.
         That the posts were permanent and the Department’s decision to
          offer continual fixed term contracts was so as to avoid giving
          contracts of indefinite duration.

The Rights Commissioner issued a decision on 7th April 2006. She awarded a
payment of €500 to each of the claimants in respect of the period of layoff in
December 2004 which was based solely on their status as fixed term employees.
She also awarded contracts of indefinite duration to the five claimants employed
since 2001 and ruled that the sixth claimant was not entitled to such a contract as
employment in that case commenced in July 2002.

The employer appealed the Rights Commissioners decision to the Labour Court.
The Union made a further submission at the Labour Court hearing which took
place on 29th November 2006 and in a decision on 17th January 2007 the
Chairman of the Labour Court upheld the Rights Commissioner decision and this
allowed the employers appeal.

In February 2007 the Union was advised that the Minister for Foreign Affairs was
appealing the Labour Court decision to the High Court. Following various dates
and deferrals for the High Court hearing over the last year the Union now has
finality on these cases. One of the claimants retired in April 2006 and one was
deemed not eligible on the basis that they did not have sufficient service and the
other four have now been offered contracts of indefinite duration. Each of the
claimants received the €500 monetary compensation.

A further four cases were lodged with the Rights Commissioner Service in 2006
on behalf of members in the Passport Office. A hearing before the Rights
Commission took place on 7th December 2006 but the case was put on hold
pending the outcome of the High Court action on the previous cases. As the High
Court appeal was later withdrawn and a settlement reached it was then possible
to proceed with hearings on the four cases.

In October 2008 the Union and the employers reached an agreement on
settlement terms on behalf of the four claimants that included contracts of
indefinite duration and monetary compensation.

The Union has lodged a further eleven cases with the Rights Commission
Service in August 2008 and we are awaiting a date for a hearing.




                                                                                10
13. CPSU EQUALITY SEMINAR

The Union intends to hold a series of Equality Seminars around the country in
2009. Details giving the dates and venues will issue to Branches in due course.

14. INTERNATIONAL WOMEN’S DAY

International Women‟s Day is held on the 8th March each year.

International Women‟s Day originated in the USA at the beginning of the 20 th
century at a time of major growth in the industrialized world. There was growing
unrest among women who worked in the textile industry in what are now
commonly known as “sweatshops” regarding pay, shorter hours and voting
rights. In 1908, 15,000 women marched through New York to protest about
dangerous working conditions and low wages and voting rights. They also called
for a shorter working day of 10 hours! Police attacked the protesters and there
were a number of casualties. The following year a memorial march took place in
the USA on the 28th February 1909 and National Women‟s Day was observed
across the United States. In 1911 Germany, Austria, Denmark and Switzerland
celebrated the first International Women‟s Day in Europe on 19th March. On this
day more than one million women attended rallies in a quest for the right to vote,
the right to hold public office, the right to work and end discrimination. Less than
a week later on the 25 March, the tragic 'Triangle Fire' in New York City took the
lives of more than 140 working women, most of whom were Italian and Jewish
immigrants. This tragic event drew attention to working conditions and labour
legislation in the United States and became a focus of subsequent International
Women's Day events. In 1913 on the eve of World War 1 Russian women held
their first International Women‟s Day. The following year women in countries
across Europe held rallies to protest about the war and show solidarity with their
sisters.

In 1917, on the last Sunday of February Russian women began a strike for
„bread and peace‟ in response to the death of over two million Russian soldiers in
war. Despite political opposition the women continued the strike until four days
later the Czar was forced to abdicate and the provisional Government conceded
women‟s right to vote. The date the women‟s strike commenced was the 8 th
March and this became International Women‟s Day across the word.


15. WORK/LIFE BALANCE DAY

Work/Life Balance Day fell on 27th February this year. One of the current
difficulties facing members in the Union is that where because of changes in their
household income members are now seeking to return to work full time. This is in
stark contrast to previous years where the emphasis was on increasing the range


                                                                                 11
of worksharing options available. Nevertheless it is important to continue to mark
Work/Life Balance Day.

16. CONGRESS JOINT WOMEN’S CONFERENCE

The Congress Joint Women‟s Conference took place on 6 th and 7th March 2009
in the Wellington Park Hotel, Belfast. The theme for this year‟s Seminar was
“Making the case for a strong focus on Gender Equality and Worker‟s Rights in
recessionary times”. Speakers at the Seminar included Carol Baxter Equality
Authority, Pinar Alkan Yarikkaya Trade Unionists Turkey, Marian Harkin MEP,
Nancy Cora Aguiar Trade Unionists Cuba, Evelyn Collins Chief Executive
Equality Commission for Northern Ireland and Tara Scott and Stacy Dooley BBC
TV Series “Blood, Sweat and T-Shirts”.




17. EQUALITY CASES

17.1 IAA Equal Pay Case

This is a long standing claim seeking equal pay on behalf of 35 named female
members in the Irish Aviation Authority against male comparators employed in
technical grades but assigned to clerical/administrative work. The claim was
referred under the Anti Discrimination Pay Act 1974, the Employment Equality
Act 1977 Article 119 of the European Treaty (later replaced by Article 141 of the
Treaty of Amsterdam) and the European Directive on Equal Pay. A series of
hearings and appeals have taken place over the years with the full hearing of the
case in its entirety held on 22nd July 2008 in the Equality Tribunal. The main
argument made by the employer was that there was a higher level of skill and
qualifications required for the comparator grades than the claimants. Therefore
they argued it was lawful for the Authority to pay the male comparator grades at
a higher rate than the complainants and that these were the grounds other than
gender for doing so. The Union while acknowledging the different skills required
for the different grades argued that the technical qualifications held by the
comparators were not relevant to the work that they were assigned to do.
Therefore the rate of pay was not lawful and the employer did not have grounds
other than gender for doing so. The Equality Officer is expected to issue his
decision on the case later this year.

18. FAS

A victory was achieved in 2008 when a complaint that CPSU FAS members,
mainly women, were being discriminated against as a result of policies and



                                                                               12
procedures in use in FAS. IBEC representing FAS argued that the case was one
of equal pay while the Union argument that the complaint related to equal
treatment was upheld by the Equality Officer when dealing with this preliminary
issue. A further hearing expected in early 2009 will deal with the substantive
issue of whether CPSU have been discriminated against because of their
gender.




                                                                            13
             13

								
To top