Eamon Ryan (Dublin South, Green Party)
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Question 198: To ask the Minister for Justice, Equality and Law Reform his role in the lobbying by Aer Lingus management for an exemption to equality law, in view of recent revelations regarding same. [38539/05]

Michael McDowell (Dublin South East, Progressive Democrats)
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During the passage of the Equality Bill 2004 through the Oireachtas, an issue was raised by IBEC about a difficulty with the application of the age ground under the Employment Equality Act 1998 for certain practices operated in Aer Lingus and other employments. Representatives of the Department of Justice, Equality and Law Reform subsequently met representatives of IBEC, Aer Lingus and the Department of Transport to examine the issue further. Legal advice confirmed that there was an existing problem arising from the provisions prohibiting discrimination on the basis of age in the Employment Equality Act 1998. If two workers have the same length of service, but certain advantages are given to the older worker by virtue of a collective agreement, it is possible that it can be seen as discrimination on the basis of age, contrary to the provisions of the 1998 Act.

A Government amendment was proposed and accepted on Committee Stage of the Equality Bill 2004 in the Dáil to insert a new subsection 7(A) in section 34 of the Employment Equality Act 1998. The purpose of the amendment was to clarify that, for the purposes of section 34(7) of the 1998 Act, "relative seniority" may be determined having regard to the respective ages of employees at the time of their recruitment, if all other matters are equal and it is accepted as part of a collective agreement. The provision is in compliance with Article 6 of the EU framework employment directive, which permits differences of treatment on the age ground if they are objectively and reasonably justified by a legitimate aim. The effect of subsection 7(A) is to provide for the continued validity of certain age related provisions if they have been agreed collectively by employers and employees. It is recognised, as IBEC confirmed to officials from the Department of Justice, Equality and Law Reform, that situations can arise in the employment of staff in which it is difficult to determine relative seniority based on length of service. This can happen if a number of staff are recruited at the same time to the same category of post or employment. A "tie-breaker" situation can arise in such cases. If the tie-breaker agreed between staff and employers in the context of a collective agreement is based on the relative ages of the employees at that time, it is appropriate to exclude such agreed arrangements from unlawful discrimination under the Employment Equality Acts 1998 and 2004. It is open to employees and employers to change any such arrangement, should they so agree.