John Brady (Wicklow, Sinn Fein)
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I thank the Chair and members for bringing this Bill forward for scrutiny by the committee. I would also like to acknowledge the support, assistance and advice I received from a number of organisations ahead of the debate on this Bill in the Dáil on 23 February last, including Age Action Ireland, Active Retirement Ireland, the National Women’s Council of Ireland and SIPTU.

The Bill seeks to give people choice. It is about one issue - abolishing mandatory retirement and putting an end to ageism at work. Its importance to so many people is extraordinary. Since I first introduced the Bill, my offices have been inundated with letters, emails, phone calls and personal visits asking when this Bill will become law. Of course, while it has been impossible to provide such a timeframe, I want every member of this committee to know that people approaching retirement are holding out hope for this Bill, so its importance should not be underestimated.

It is also important to consider the wider benefits this Bill will have and the issues it will help to address. Abolishing mandatory retirement will mean that 65 year olds will no longer be forced onto a jobseeker's payment, a lesser payment than the State pension, for one year. In 2021, when the pension age will be 67, will jobseeker's payments be extended for two years, given this would be very messy? Abolishing mandatory retirement will also assist people who do not have the necessary contributions to qualify for a full State pension, which is a huge issue. To date, due to the 2012 pension changes, 35,000 older people are on a lesser pension payment than they would have been on had they retired before 2012. It should also be borne in mind that mandatory retirement has been abolished in a number of other countries, for example, New Zealand, Australia and the United States as far back as 1986.

This Bill is not perfect, which I acknowledge. There are a number of technical issues that must be addressed and here is the place for that process to be undertaken. However, although issues were identified by the Government, I welcome the fact it saw beyond those issues to the bigger issue at play to pass the Bill unanimously.

With that said, I would like to address the concerns raised by the Minister of State, Deputy Stanton, in his speech when this Bill was debated on Second Stage in the Dáil. These concerns may be shared by some members of this committee today, so I will go through the Minister of State's concerns. First, he stated that multiple pieces of primary legislation would be required in the context of the enactment of this Bill. We know that changes to employment law are not simple and that one change will not suffice. However, simply because multiple pieces of legislation may have to be changed should not be off-putting, given we are here to legislate. I suggest we could easily insert a provision in this Bill that any references to mandatory retirement in existing legislation would no longer be applicable as our new provision would apply.

Second, the Minister of State mentioned the amendment made to the Equality (Miscellaneous Provisions) Act 2015 to bring our equality legislation more in line with a directive issued by the Court of Justice of the European Union. This is an important amendment in light of this Bill. The directive was issued by Europe 17 years ago. It states that any compulsory retirement age must be objectively and reasonably justified. However, this is difficult to define and it has largely been left to the courts to define what is objectively and reasonably justified and what is not. There have been various interpretations of what "objectively and reasonably justified" may mean and it invariably works against the employee's interest.

We want to balance this out. We want it to be based on clear actuarial evidence rather than interpretation, strengthening what is already there and giving further support to employees.

The retrospective question is key to this Bill. The Minister raised concerns around the setting aside of retirement provisions in most existing employment contracts. The Bill will impact on existing contracts; for many of those contacting me about the Bill, this is an essential element. It does not mean that people will be forced to remain at work; people can retire whenever they want. Instead of being given a set age at which they must retire, employees can consider their own circumstances and make their own choices. It is nothing more than a question of choice. The Minister commented that the Attorney General has advised that applying this Bill retrospectively to pre-existing contracts of employment may be susceptible to legal challenge. All legislation is susceptible to legal challenge. It is up to us to analyse this legislation and make it as strong and well drafted as possible for the benefit of workers.

The Minister said there may be significant implications for youth unemployment. This is the most overused and tired argument when it comes to abolishing mandatory retirement, and one which people fail to back up with any proper evidence. It is also defined as one of the legitimate aims referred to in the EU directive to allow mandatory retirement. In reality, the evidence indicates that reducing labour force participation among older people does not lead to increased employment for young people. Norway, Sweden, New Zealand and Iceland are among the top ten countries in the world for youth employment and also for the employment of older people. Age Action Ireland addressed this argument in an excellent briefing paper on abolishing mandatory retirement and outlined the following evidence: a 2014 report from IZA World of Labor found that there is no trade-off in the employment of young and older workers; higher employment for older workers coincides with higher employment for younger workers; and reducing the employment of older persons does not provide more job opportunities for younger persons. The report also found that measures introduced in Denmark and France that reduced labour force participation for older workers saw drops in youth employment over the same period. The link has also been comprehensively dismissed on repeated occasions by the OECD. It is important to dispel myths in this area. The claim that fewer jobs for older workers results in more jobs for younger workers, though unfounded, is proving especially stubborn.

The Minister mentioned that allowing financial incentives to be offered to employees to cease work would have cost implications. They will give an employer the option to provide an incentive for an employee to retire. That is not an obligation; it is simply providing an alternative avenue. The Minister mentioned PRSI contributions being paid by those who would remain at work. It is far more beneficial to have payments going into the Exchequer than out of it. The Minister spoke about the impact on defined benefit pension schemes. Obviously, legislation of this nature will have knock-on effects but this should not prevent us from moving forward with the Bill. There are fewer defined benefit schemes than ever before and provisions can be put in place to complement the Bill. Instead of setting older and younger workers against each other, we should be trying to maximise the valuable contribution older workers provide to the economy, including making full use of the skills, experience and wisdom of older workers to train in younger and newer employees. For me, this argument resembles those that could have been made against women entering the workforce. Although it might have been argued that women would take men’s jobs, this was not the case. I ask the committee to look at the evidence and not to focus on this flawed argument.

Turning to the Bill itself and examining it section by section, I would like to address a number of issues. The structure of the Bill needs to be changed. Instead of substituting subsection (3) of section 34 of the Employment Equality Act, as the current drafting of the Bill provides, we would like to insert this subsection into section 34(9) of the Act. This is a structural issue and it is not serious. Alternatively, it could be inserted into section 37. The specific section into which the provision is inserted is not of great importance. As I have already said, using the wording "clear actuarial or other evidence" will strengthen the provision, which currently allows for mandatory retirement once it is “objectively and reasonably justified” which I feel allows for far too wide an interpretation. A definition of what "clear actuarial or other evidence" involves is important here and I would like to see that included for clarification purposes.

I would like to see a further definition of what is meant by “capable of doing the job” – physically able to come to work, do the job and carry out all necessary duties. Section 1(b) makes reference to the Garda and Defence Forces, and is contradictory in its current position in the Bill. We do not wish to delete the text here but insert it and again, this is part of a structural issue which I feel can be easily rectified. To clarify, we are retaining the reference to "objectively and reasonably justified" for those in security-related employment .

We remain open to suggestions and amendments from Deputies, Senators and the relevant Ministers once they do not impede the overall objective of the Bill, which is to abolish mandatory retirement and to end ageism. That is its sole objective.