We have a suggested grouping of amendments. I suggest that, with the approval of the House, we take amendments Nos. 1, 2, 5, 6, 19 and 22 together.
SECTION 1.
Committee on Finance. - Anti-Discrimination (Pay) Bill, 1974: Committee Stage.
I move amendment No. 1:
In page 2, between lines 17 and 18, to insert the following: "place' includes a city, town or locality.".
On Second Stage there was some discussion on the word "place". It was suggested that "place" was a little too restricted. After further discussion with the draftsman I decided that "place" implied in effect a reference to a city, town or locality and that this should be written into the Bill to ensure there would be no doubt about the matter. That is the purpose of this amendment. It is designed to remove any doubt regarding the definition of "place" and clearly indicate the full scope of the provision. The amendment is designed to prevent any attempt by an employer to re-assign his workers to different establishments within a particular city, town or locality and thus avoid his obligation to give them equal pay. That was a possibility in the definition as originally framed. By this amendment that possibility is eliminated. The intention is that entitlement to equal pay will arise in respect of all employment by the same employer in a particular city, town or locality. It does not, of course, refer to regional pay factors.
The difference between the Minister's amendment and the amendment in my name is that in my amendment "place" means any city, town or other geographical area. In the Minister's amendment "place" means a city, town or locality. Is the Minister satisfied "locality" is the proper term to use? Is it broad enough to cover the definition of "place"? I believe it is a little too narrow. The Minister might consider the wider term "geographical area". Would the Minister explain the term "locality"?
I am advised that "locality" has a legal significance in the sense that it covers the city, town, environs of that area whereas the term suggested in the Deputy's amendment would be more vague. I think the Deputy is trying to achieve the same thing and the advice available to me would suggest that it is more clearly defined in the amendment here and that the term "geographical area" would give rise to difficulties of interpretation.
As against that, we have industrial estates being developed in different localities while the same concern is in question. A concern in the Ballyfermot industrial estate could have another factory in the Tallaght industrial estate. They are two different localities. "Geographical area" would probably be wider.
In this amendment we are referring to the paying locality, that generally designated by the collective bargaining process over that area. That would be clearly understood by all involved since the whole purpose of this Bill and its significance is to be understood against the background of collective bargaining. The locality intended in this area would be the paying locality, the rate locality. That would, therefore, cover the industrial estates mentioned by the Deputy.
But if one was in the city and the other in the country or in an adjoining county?
There are not different rates in industrial estates, urban or general paying areas.
It is possibly a national rate now in most industries.
The "locality" mentioned in this amendment does not refer to the national totality. It refers to the paying, collective bargaining locality.
Amendment agreed to.
Deputy Dowling's amendment No. 6 is an alternative to No. 1 and since No. 1 is agreed amendment No. 6 cannot be moved.
Question proposed: "That section 1, as amended, stand part of the Bill."
On Report Stage the Minister might consider defining "employer" in section 1 if he considers it necessary, I propose to table an amendment to section 1 on Report Stage defining the term "employer".
We will come to "employer" in amendments 3, 4 and 7. That will give the Deputy an opportunity of talking on that.
Question put and agreed to.
SECTION 2.
I move amendment No. 2:
In page 2, line 28, to delete "place of employment" and substitute "place".
This is consequential on amendment No. 1.
Amendment agreed to.
I move amendment No. 3:
In page 2, line 30, to delete "and by the same employer" and substitute "by the same employer (or by an associated employer if the employees, whether generally or of a particular class, of both employers have the same terms and conditions of employment),".
The purpose of this amendment is to permit women to seek pay equal to that of men employed by an associated employer in the same city, town or locality provided the workers of both employers have the same terms and conditions of employment. This would deal with the position of women in subsidiary companies. It was suggested the last day that in the original Bill "by the same employer" was unduly restrictive and we were anxious to see that it would not be so restrictive. We were, therefore, anxious to see that if the headquarters of a company employed men and women on night work and an associated employer employed women only, the women in both companies would be entitled to pay equal to that of the men in the headquarters company.
Amendment agreed to.
I move amendment No. 4:
In page 2, between lines 31 and 32, to insert the following subsection:
(2) For the purposes of this section two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control.
Amendment agreed to.
I move amendment No. 5:
In page 2, lines 33 and 34, to delete "place of employment" and substitute "place".
This is a consequential amendment arising from the amendment to section 1. That is its only significance.
Amendment agreed to.
Deputy Dowling's amendment No. 6 falls.
Amendment No. 6 not moved.
Since amendment No. 3 has been agreed amendment No. 7 cannot now be moved. It can be discussed on the section as amended or on Report Stage.
Amendment No. 7 not moved.
Question proposed: "That section 2, as amended, stand part of the Bill."
I considered even my amendment in connection with the definition of "employer" as too narrow. I think it should be amended to read:
an employer means a person or persons who engage others under a contract of service or apprenticeship or contract personally to execute any work or labour or any firm, partnership, subsidiary, company or other body substantially controlled by the same person or persons.
I think that neither the Minister's amendment nor my own amendment goes far enough and I would ask the Minister to see whether on Report Stage it would be desirable to expand his own amendment or bring in a new amendment to cover the broader aspect as indicated in my comments now.
I think we have covered this. We have extended the concept as widely as it is possible to expand it in the direction of that applicable in Britain. We think it will tie in with the "locality" or "place" or at least it will parallel that extension in the context of the firm in my amendment.
Question put and agreed to.
SECTION 3.
I move amendment No. 8:
In page 3, line 10, after "equal" to insert "in value".
This section indicates the circumstances where equal pay would apply. It generally represents in legal language the recommendations of the Commission on the Status of Women. The commission recommended that equality in rates of pay between men and women should apply in any circumstances where.
the jobs performed by men and women are of equal value in that the demands (for instance in relation to skill, physical or mental effort, responsibility and working conditions) made on a woman are equal to the demands made on a man in respect of the work each performs;
Roughly, that is the intent of section 3 (c) and it is in keeping with the corresponding recommendation of the commission. Representations were made that equal value should be included in the subsection and that is why the amendment was proposed. It was our intention in the wording of the Bill and it has been represented to me that it would strengthen the intention in the original wording to spell it out here. It is in accordance with the requisite ILO convention which relates to equal remuneration for men and women workers for work of equal value. The amendment was put forward to strengthen the intention in the original definition.
Amendment agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."
Perhaps the Minister might consider deleting the words from "where" to "and". This would clarify the situation.
What is in the Deputy's mind in this regard?
Section 3 (c) states:
Where the work performed by one is of a similar nature to that performed by the other...
Some confusion could arise in regard to the word "similar". If the section read: "any difference between work performed, or the conditions under which it is performed by each occur only infrequently or are of small importance in relation to the work as a whole", there might be less confusion. It would be desirable to make this section as clear as possible.
I should not have thought that difficulty arose in the amendment I put forward. I do not see how the definition is robbed of any validity in the terms of the amendment.
Clause (c) states:
where the work performed by one is equal to that performed by the other in terms of the demands it makes on each person in relation to such matters as skill, physical or mental effort, responsibility and working conditions.
A certain type of work can create a demand on one person while the same work can create a greater demand on another. If everyone claims he is working as hard as the next person, an unskilled labourer could be entitled to the same pay as a tradesman or another person on the grounds of the demands made on both people. This subsection should be looked at again to see if it could be phrased more simply. The question of demand is emphasised and that leaves it open to a variety of interpretations.
The intention is to make it as widely applicable as possible. There is an interaction both in the demands made and the kind of work done. There is a wide comprehensiveness about the definition as originally outlined, and there is the added help of attempting to extend the area of work covered. The demand is an advantage built into the legislation.
This subsection leaves much to be desired because it is too loose. It would be difficult to interpret the demands of one particular job. The demand is not the same on two people and it is impossible to compare one person with another in this regard. I know the question of demand is built into some legislation in other countries. However, I think this aspect should be examined to ensure that the subsection can be easily interpreted and the confusion that may arise regarding demand eliminated.
While the original definition is wide enough, if we did not have section 3 (c) the Bill would be very narrow in scope. The equal value definition must be supplemented by a further clarification, as is done here. This follows the lines of the report of the Commission on the Status of Women and section 3 (c) is in the direction of the demands they made. Section 3 (c) is for the purpose of widening the scope of the Bill to include as many as possible. The demand is not restrictive; it is the reverse, in that it extends it. One must not forget that there will be job valuation officers who will adjudicate in the area of demand. It would weaken the legislation if section 3 (c) were dropped.
Question put and agreed to.
Section 4 agreed to.
Amendment No. 9 in the name of Deputy Dowling has been deemed out of order as it is not relevant to the provisions of the Bill as read a Second Time.
Amendment No. 9 not moved.
NEW SECTION.
I move amendment No. 10:
In page 3, before section 5, to insert the following new section:
5. (1) Where after the commencement of this Act an agreement to which this section applies contains a provision in which differences in rates of remuneration are based on or related to the sex of employees, such a provision shall be null and void.
(2) This section applies to—
(a) a collective agreement made after the commencement of this Act,
(b) an employment regulation order within the meaning of Part IV of the Industrial Relations Act, 1946, made after the commencement of this Act.
(c) a registered employment agreement within the meaning of Part III of the Industrial Relations Act, 1946, registered in the Register of Employment Agreements after the commencement of this Act, and (d) an order made by the Agricultural Wages Board under section 17 of the Agricultural Wages Act, 1936, after the commencement of this Act.
This provides that with regard to collective agreements, registered agreements, employment regulation orders and any orders made, for instance, by the Agricultural Wages Board, after the commencement of this legislation if rates of pay are mentioned in the registered agreements, based on differences of sex, they could not be included in such regulations or orders. It has been represented to me that it would be physically impossible for the unions and the employers to amend all collective agreements to delete all references to payments based on sex differences, by 31st December, 1975, as there are many thousands of collective agreements up and down the country. The negotiation of agreements often involves long discussions. There would be the whole question of reclassification based on the terms of this legislation dealing with work of equal value. This section makes illegal any payments in such collective agreements based on sex differences after December, 1975. That is the intent of this section.
We accept the amendment. The Minister indicated that trade unions would have difficulty if this section were not in the Bill. I agree with that point of view. Where there is pressure from trade unionists to debar women from taking certain jobs, certain types of employment, can the Minister say will this section cover that aspect? In the bar trade women are not allowed behind the counter. Is this section strong enough to cover discrimination against women apart from the question of pay?
The question raised by the Deputy is important but it does not arise on the section. This section will outlaw any wage assessment based on the grounds of sex alone. The definition in the Bill will apply with full force. Any payments made in such agreements must be based on the definition of work of equal value, together with supplementary provisions in the legislation, equal demands, and so on. We are setting up a job evaluation service. The matter raised by the Deputy will have to be settled. I have already intimated that legislation will follow in the general area of discrimination to open up jobs to women which were traditional male preserves. This is an essential element in uplifting the position of women in industry. This outlaws any payments based on sex. It does not debar any woman from a particular job. Later legislation, and the whole question of training facilities for women, will change the situation where women are not in certain key jobs in Irish industry.
While the Bill covers equal pay for females, surely if there is no section to permit females to take up employment which will increase their income, they are still being discriminated against. It is desirable that that should be covered in the Bill. With the implementation of equal pay there will be reshuffles throughout the industrial sector and the office sector. In those reshuffles I hope there will be no downgrading of females. They should be permitted to upgrade themselves if that is possible. Up to now certain skilled trades and others have been reluctant to allow females to enter trades or sectors where they could improve their income.
If the Bill deprives a female of the opportunity to advance herself and does not protect her against objections which may be made by male workers, it is fairly defective. The Minister should consider inserting protection for her. There will be a reshuffle. Efforts will be made to downgrade females. Efforts will be made by females to upgrade themselves. If the Minister can give us an assurance that the trade unions will not impede women who wish to advance themselves and thereby increase their remuneration, we can move on. There is the serious defect at the moment that females are prevented from advancing themselves on the basis that skilled male labour feel that it would erode their position.
The Deputy has raised a very serious problem. With his co-operation I propose later this year—certainly before this Bill comes into effect in December, 1975—to introduce legislation dealing with unfair dismissals and to prevent discrimination in employment. It will legislate for the recruitment, promotion and training of women in industry. This legislation deals purely with equal pay which is only a limited area of the discrimination practised against women in Irish industry. The other matters must be rectified before women can be said to have a fair deal in their work places.
Would the Minister consider covering this loophole in this Bill? Surely this should be a fairly comprehensive Bill. Experience abroad has been that, when equal pay legislation was introduced, there was a tendency to down-grade females and divert them into dead-end jobs, or jobs which did not pay rates suitable to their talents. In some continental countries the workers were responsible. When we are legislating for equal pay, we should have the necessary provisions to meet that situation in the knowledge that it has happened before and that protection is desirable and necessary. Before the Bill goes through the House perhaps the Minister will see if this aspect could be covered. It is quite possible that some situation may develop throughout the year which would prevent the other legislation going through the House. Therefore, it is desirable that, in this Bill, females should have this form of protection which the Minister and I feel is necessary. I think this is the Bill in which to do it. If it is anti-discriminatory, then it must be anti-discriminatory even against workers who will tend to deprive them of advancement.
I agree with what the Deputy said. This is an Anti-Discrimination (Pay) Bill and the items which the Deputy mentions I can assure him will be part of legislation soon to come.
Amendment agreed to.
SECTION 5.
I move amendment No.11:
To delete subsection (4) (a) (i), line 36, and substitute "(i) enter premises having given reasonable notice of his intention to do so".
The Bill as it stands says: "(i) at all reasonable times enter premises,". What might be reasonable in the view of an equal pay officer may not necessarily be reasonable in the view of employers. It could be a week-end. It is unlike the entering of a premises for the purpose of ascertaining whether or not a person was being unfairly treated. It is unlike factory inspectors entering a premises to see a situation as it develops under working conditions. Here it is a question of examining books and entries to ensure that the claims may satisfy the equal pay officer. I think it reasonable that one be given reasonable notice of an equal pay officer's intention to visit because it would be necessary to have available records and documents and, in some cases, it might be futile for him to enter a premises if those records and documents were not available. If one gave an employer reasonable notice, I do not think one would lose anything. It might be more reasonable and to the advantage of the equal pay officer to give that notice. I do not think at that stage books or records could be altered to make any difference to the situation.
It is very different if one wants to examine working conditions as, say, in the case of a factory inspector. I feel it would add to the Bill and be of assistance to the equal pay officer if some notice were given to the employer to have such documentation available when he arrives.
The intent of this section is to guard against the very thing about which the Deputy was worried in the previous section, that is, that women's positions might be endangered or that further unfair things might be done to the conditions of women in industry. The Deputy will well understand that if reasonable notice was given in the case of an employer—an employer who may in fact have been dealing in an unfair way with the pay and conditions of women—then that would reduce the effectiveness of the equal pay officer's visit. Those are the powers sought here for the equal pay officer. They are broadly similar to those given to inspectors under the Industrial Relations Act, those inspectors who are there to carry out employment regulation orders.
I think the amendment proposed by the Deputy would reduce the effectiveness of the equal pay officers investigations if they were required to give notice of their visits to an erring employer. The amendment would not be helpful to the effectiveness of those officers or to the women whose claims they would be out to protect.
Surely it is a question of having documentation available. Probably the equal pay officer would be confronted with the trade union officials, shop stewards and the worker. I do not think anything would be lost. In fact it might be to the advantage of the equal pay officer, the persons concerned, and their union representative, that they would have all the necessary documentation available rather than go to a premises where there was none available and where they had to listen to a verbal coverage of the situation. I think it more desirable that one would have even this slight delaying factor. It is not intended in any way to diminish the authority of the equal pay officer but rather to ensure that, when the employer is confronted by the equal pay officer, the necessary documentation will be available. If it is a case in relation to equal pay, it will be the documentation of the type of work in which a person has participated over a period that would be in question rather than investigating what was the situation at that given moment because, at that given moment, it would be likely that the person who brought the complaint might well be doing a different job from that which she had been doing in the previous year or two years or whatever may be the period in question. For that reason, it is desirable to ensure that everything be available from the point of view of the worker, the trade union and the equal pay officer. It would be in everybody's interests to ensure that all necessary documentation be available in order that they might have a full confrontation and discussion on the matter rather than conduct the case on a verbal basis, as might arise if the present subsection were carried.
The Deputy may rest assured this is not some dangerous precedent; the right enshrined here of calling on such missions is provided in previous industrial relations legislation. This will not be a threat to good employers. Obviously, there will be ample reason for the visit of such an equal pay officer. Visits will be mainly to people whom the equal pay officer has reason to believe are not fulfilling their obligations under this legislation. Therefore, this discretion of the equal pay officer would be essential to his effectiveness. We must also ensure that no employer may, with equanimity, break the law in this area. Providing that equal pay officers in general would give forward notice of such visits would obviously undermine the effectiveness of their whole role and their function as an important element in the effectiveness of this legislation. They are there as the executive representatives, to see that the law is carried out in this area. They are there also to be the advocates of the person who seeks the equal pay enshrined in this legislation. It would certainly cut out their effectiveness had they to forewarn erring employers.
I take it, then, that an equal pay officer will just arrive at a premises. He will not be concerned with documentation or in requiring an employer to furnish all the documentation necessary to prove that a person has been employed in a particular job over a period. Rather, he will go into a premises and be satisfied with a verbal explanation by the employer.
As stated in subsection (4) (a) (ii) he may ask the person in charge of the premises to produce to him any records, books, or documents. Of course, generally he would not ask for such things unless he had reasonable grounds for so doing; if he was not already in possession of certain facts or had had an appeal about a certain area. These equal pay officers will not be going to people at midnight and will not be unreasonable. The reason it is built into the enactment here is to have sufficient safeguard against any abuse of the right conferred on the equal pay officer of this kind of entry.
Is the Minister satisfied then?
I am.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In subsection (4) (a) (ii), lines 37 and 38, to delete "any person who appears to him to be in charge of the premises" and substitute "an employer or his nominee".
This rather peculiar section requires:
...any person who appears to him to be in charge of the premises to produce to him any records, books or documents in the person's power or control and which the officer has reasonable grounds for believing to contain information of the kind so required and to give him such information as he may reasonably require in regard to any entries in any such records, books or documents,
The equal pay officer requires "any person who appears to him to be in charge of the premises". This is a very dangerous situation. Any person who appears to him to be in charge of the premises could be the night watchman, the charwoman or anybody else. If they appear to him to be in charge of the premises, they will have to produce the documentation he re-requires.
I feel this needs amendment. I think the amendment suggested here whoever the nominee is, whether it be the manager or the personnel officer, is the person who should be regarded as being in charge. The section is very vague. The first person who appears to the pay officer entering the premises to be the person in charge could be asked to produce the books and documents. It may well be that person could be a very junior person. Surely it is reasonable that the person the equal pay officer would require the documentation from would be a responsible person. Such a person would be responsible for the entries and for the bookkeeping arrangement in that premises rather than the person who just appeared to be in charge whether it is the charwoman, the doorkeeper or even the night watchman. The Minister should have another look at this particular subsection.
The provision in the Bill in this area is more or less similar to the legislation I referred to in the case of the right of the officer to enter at reasonable times without forewarning. The provision here is similar to the legislation I quoted and in defence of that right there is in section 52 of the Industrial Relations Act, 1946 a similar provision as that instanced here. It is, for the Deputy's information, often difficult in the case of employers who are not living up to their obligations to ensure that they leave somebody on the premises with authority to act for them. Inspectors in my Department have gone out to ensure that people were being paid wages according to law under various employment regulation orders—I will not mention the industry—in several parts of the country and they have been fobbed off again and again by the employers not being at home.
It is possible for an employer not to be at home for many months or even for years with the officer having to call again and again. This provision is necessary to ensure that nobody can make a mockery of the law in this vital area of a person's right. I agree with what the Deputy says that we know of instances where the officer has, in fact, mistaken the night watchman for the employer. In most cases his recognition is very acute. This provision ensures that he meets the genuine employer after a few visits, whereas without it the possibility would exist that he could be calling at the same place for a number of years.
The Minister compared this Bill with other legislation but it must stand on its own. We could compare it with the Banks Bill, where the banker could not be jailed but the doorkeeper, the night watchman or the charwoman could be jailed if they impeded the person entering the premises. If this is the phraseology used in other legislation it is bad. It should be more clearly defined so that one can identify the person who is in charge. The best dressed man in the concern could be the night watchman. If it appears to the person entering the premises that the best dressed man there is the person in charge there is confusion. You have to spell out that it must be an official of the particular concern who will produce the documentation. I do not know how one would interpret "appears to be". If one person comes into the concern in a car and the other person comes in a bus, does it mean that the person who comes in the car is the person he asks for the books? This needs some clarification.
It contains the proviso that he merely asks that particular person to produce those documents in that person's power. It is not likely that the night watchman or the porter will be able to go to the director's office and take from it something appertaining to the control of that particular place of employment. He could not do that unless he was a very well-placed porter. The only reason I mentioned previous legislation was to disabuse the Deputy that anything new is being sought here in this legislation. This requirement is in simply because out of the experience of the Department's officers in this area it is necessary. I can assure the Deputy that we have not any evidence, under any legislation where this power is given to officers, either in payment regulation orders or anywhere else, that this particular power is abused or instances where this matter has been questioned.
This is very vague. It does not positively identify a person. You must have positive identification in this case.
It is the person who appears to him to be in charge of the premises he asks to produce to him any records, books or documents in that person's power or control or which the officer has reasonable grounds for believing to contain information of the kind required. We must give discretion to the officer involved here. This discretion is amply given in legislation of this kind going back over many years. The need has been confirmed by the experience of this kind of legislation.
I fully support Deputy Dowling in this matter. When the Minister introduced this Bill he described it as a revolutionary type of legislation. He had to give it a special name to distinguish it from any other legislation that went through this House previously. He said he needed to remove any comparison it may have had with Fianna Fáil promoted legislation. We now find there is a vagueness about this.
It seems to me that the most convenient person that the equal pay officer could decide appeared to him to be in charge of a premises where he wanted to carry out the investigation would be the clerk typist. The Minister earlier said that equal pay officers were likely to be reasonable people and would not visit premises at 12 o'clock at night with the result that the night watchman was the most unlikely person he would meet, apart from his disinclination to meet the security dog. The most convenient way for the equal pay officer to get his work done would be to decide that the person who appeared to him to be in charge of the premises was the clerk typist who would appear to him to have control over the records, books and documents he was looking for.
Deputy Dowling's amendment gives the equal pay officer the right to require the employer or his nominee to produce the documents required. It is very legitimate for the equal pay officer to arrive at a business premises and to ask who is in charge. I presume, even under existing legislation, he probably has to do this. Anybody purporting to say that he is in charge is acting on behalf of the employer. There is no reason why this question should arise of the man who suggests he is in charge against the word of the equal pay officer who, perhaps, decides a certain man is not in charge and selects a different man, perhaps the best-dressed one. In many good progressive businesses I know, the employer or the man in charge is not the best dressed person on the premises. Deputy Dowling's amendment seems extremely logical. Leaving it to the equal pay officer's discretion as to who is the man in charge is a little too much. I accept that, perhaps, so far everything has worked out conveniently. That happened in regard to the Adoption Act until this week. It may not be the best practice to copy from previous legislation which may not be as extensively used as I presume the Minister hopes this will be. There may well be an escape clause which Deputy Dowling's amendment endeavours to cover.
There is no danger of the kind of situation that the Deputy has mentioned arising. It is possible for any legislation to be questioned in court at any time but the person who would have to answer the queries of the officer involved in these inquiries would have to be in a position to produce any records, books or documents in the person's power or control. That is a specific limitation in relation to the person with no authority in the firm. Instead of this, Deputy Dowling in his amendment, wants to substitute "an employer or his nominee". This would give a let-out to an employer who did not want to co-operate because he would have to designate somebody specifically and if he were not anxious to meet an equal pay officer and did not specifically nominate somebody to act in his place this section of the Bill would be nugatory. That is why it is important that the section should remain as it is.
If the phrasing of the amendment is not suitable, surely it is reasonable to ask the Minister to consider rephrasing the subsection later. I think that the wording "who appears to him to be in charge of the premises to produce to him any records, books or documents in the person's power or control...." could mean any person as Deputy Lalor said, such as a clerk typist, any person who would have the right to enter the premises. Such a person would have everything under his control, including equipment. The section is vague and needs some clarification. Otherwise, an unfair onus is placed on the equal pay officer as well as on the person he directly confronts and asks to produce documents. It could cause embarrassment and possibly the dismissal of a person who was not in charge and who released documents which he was not entitled to release. The question of authority is a big consideration. I would not favour letting the employer off the hook in any way or weakening the Bill in any way. It must be strengthened and clear and concise wording is the best way to achieve this. If the wording of my amendment is not adequate, I shall agree with the Minister if he undertakes to examine the subsection again with a view to eliminating "who appears to him to be in charge" and introduces something more definite. I think that the equal pay officers themselves would like more precise guidance. This vagueness should not be found in this or any other legislation.
I do not see the point the Deputy is making but I am certainly willing to have another look at that section before Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 13:
To delete subsection (4) (b), lines 48 to 54, and substitute the following:
"(b) Any person who obstructs or impedes an equal pay officer in the exercise of his powers under this subsection or does not comply with a requirement of an equal pay officer under this subsection or any person who orders, directs, instructs or urges such obstruction, impeding or non-compliance, shall be guilty of an offence under this section and shall be liable on summary conviction to a fine not exceeding £100 or on conviction on indictment to a fine not exceeding £1,000."
I do not think the Minister's subsection is strong enough. Very often it is not the person directly involved who is really responsible. He may be urged on by somebody up the line. The original subsection is weak in that regard. If a person is urged or directed to do something, it is unfair that the person giving the direction to impede the work of an equal pay officer should get away scot-free while the person carrying out the instructions of the employer would be held to be guilty. I believe the section requires to be strengthened so as to ensure that those who act behind the scenes and who are just as culpable as the person carrying out the instructions will not escape. The person who urges or directs, if this can be proved, is the person who should be convicted, not the person who carries out the instruction.
I have discussed and examined the amendment and I have come to the conclusion that the section as drafted is adequate because any person who orders, directs, instructs or urges obstruction is, in fact, obstructing, impeding and failing to comply. I have taken advice on the matter and the amendment appears to be unnecessary. As it stands, the section encompasses the sort of action sought by the Deputy.
The subsection refers to any person involved in this. A person who fails to carry out the demands of the equal pay officer may be urged not to comply by another person. That person who is directing him or instructing him would be guilty to a greater extent and he is not referred to. In my view the section is not broad enough to deal with this particular aspect. As the Minister is aware, many people are urged and directed to do certain things by others behind the scenes in relation to officers who may be attending at the business whether they are factory inspectors or equal pay officers.
In my view they are the guilty people and not the person who is carrying out their instructions. I should like to draw the attention of the Minister to other legislation passed in the House where the person at the top is immune while the person one the bottom rung is the victim if he carries out the instructions of his employer.
It appears that the section as drafted covers the offences in both directions. The person who obstructs and the person who urges the obstruction are covered in the section.
The section merely refers to the person to whom the equal pay officer would direct his questions but that person could be acting on instructions. It is quite likely that the man behind the scenes, the faceless man, would be giving these instructions and the person on whom the equal pay officer makes his demands would be carrying them out.
Before the law it is each person standing on his or her own. This section deals with those who would break the law and it covers both cases impartially. It is for every person to understand the law and to comply with it. In my view the section as it stands is adequate for the purpose.
It refers to the man who meets the equal pay officer. That man may appear to that officer to be the person in charge but he may be carrying out instructions. Once that man appears to be in charge he is liable to conviction, and fine, not the person who gives him the instruction.
If somebody in another branch of the firm were to get at the person who would be dealing with the equal pay officer and try to encourage him to get by the law, would that person be guilty of an offence? If the owner of a concern were to tell the man who would be dealing with the equal pay officer what to say would he be guilty of an offence?
Any person who obstructs or impedes is guilty of an offence.
That does not necessarily mean the person who would be dealing with the equal pay officer. It could apply to anyone who would encourage the person who would be dealing with the equal pay officer to say certain things.
Anybody who would urge another to do certain things.
The Minister has used the word "urge" but I do not see that word used in any subsection.
It is implied in the reference to anyone who directs or instructs.
The section refers to any person who obstructs or impedes an equal pay officer and there is no question of urging as the Minister has stated. It is merely a question of obstruction.
Orders, directs, instructs or urges is, in effect, obstructing, impeding or failing to comply. All of these terms are implicit in that.
It would not prevent a person making a case. If the word "urge" was inserted it might be assumed that this was forbidden.
I do not hold that it is implicit in that.
This is the advice available to me.
Does the Minister not think that this subsection could be strengthened in some way against third party interference?
I will have a look at this subsection before Report Stage although I think it is strong enough.
It could read: any person who obstructs.
I will have a look at it again.
Amendment, by leave, withdrawn.
Question proposed: "That section 5 stand part of the Bill."
Can the Minister give an indication of how equal pay officers will be appointed? How will they be selected? Will it be a question of jobs for the boys or will they be appointed by the Local Appointments Commission? What qualifications will be required and what training will they be given before embarking on this job?
They will go through the usual route, the Civil Service Commission, and the experience to be sought will be acquaintance with this particular area. It will be for the commission to appoint them and the commission will advertise according to the criteria necessary under the job classification. The Deputy need have no fears because there will be no question of partiality on political grounds. It will be the usual impartial decision of the Civil Service Commission.
The question of job evaluation would appear to be an important aspect of the equal pay officer's function. Will special training be given to him on appointment?
Yes.
Will it be open to the public to apply for this training or will these officers be recruited from the service?
It will be an open advertisement but, obviously, it will be for the Public Service.
Will the Civil Service Commission be interviewing these people?
Yes.
Question put and agreed to.
Section 6 agreed to.
SECTION 7.
Here I would suggest we take amendments Nos. 14, 15 and 24 together.
I move amendment No. 14:
In page 4, to delete line 32 and substitute the following:
"(c) (i) A hearing under this subsection shall be held in private, but the Court shall, if requested to do so by a party to the dispute, hold the hearing in public.
(ii) Where a hearing under this subsection is being held in public the Court may, if it is satisfied that any part of the hearing concerns a matter that should, in the interests of any party to the dispute, be treated as confidential, hold that part of the hearing in private."
This amendment provides that an appeal to the Labour Court under this section shall be in private with provision for public hearings at the request of one or both of the parties as provided under the Industrial Relations Act, 1969. In the course of the debate on Second Stage the question of public hearings was raised by a number of Deputies, including Deputy Dowling, and Deputy Dowling has an amendment, No. 15, to this effect. I indicated then that I would be prepared to give the matter further consideration and I have brought forward my amendment to meet the observation of Deputy Dowling.
Amendment agreed to.
Amendment No. 15 not moved.
I move amendment No. 16:
In page 5, line 9, after "order" to insert "(or, where there is an appeal under subsection (3), within two months of the date of the order of the High Court on the appeal)".
It was brought to my notice that under the Bill as drafted originally a problem could arise where an employer fails to comply within a period of two months with an order of the Labour Court directing him to give a woman employee equal pay; he will be guilty of an offence. Section 7 (3), provides that a party to a dispute determined by the court may appeal to the High Court on a point of law. A situation could arise in which the hearing of such an appeal could take longer than two months and the employer could, in theory, in those circumstances, had he not obeyed the Labour Court order, be deemed to have committed an offence even though the matter was under appeal to another court. The purpose of this amendment is to avoid the possibility of an injustice being done to the employer in such circumstances. Where an appeal to the High Court takes longer than two months he will not be guilty of an offence until the appeal has been decided.
Amendment agreed to.
Amendments Nos. 16 and 28 are cognate. Amendments Nos. 17 and 39 are also cognate.
I move amendment No. 17:
In page 5, after line 13, to insert the following new paragraph:
"(c) (i) Where on a conviction for an offence under this section the court is satisfied that a person (in this paragraph referred to as the plaintiff) would be entitled to recover in a civil action arrears of remuneration, the court may, if it thinks fit and the plaintiff present or represented consents, impose on the convicted person in addition to any other punishment, a fine not exceeding the amount which in the opinion of the court the plaintiff would be entitled to recover against the convicted person in respect of such arrears of remuneration.
(ii) The amount of a fine imposed under subparagraph (i) shall be paid to the plaintiff.
(iii) The payment by a convicted person of a fine imposed under subparagraph (i) shall be a good defence to any civil action brought by the plaintiff in respect of the arrears of remuneration referred to in that subparagraph.
(iv) Without prejudice to any right of appeal by any other person, the plaintiff shall have a right of appeal limited to the amount of the fine, either (as the case may be) to the High Court or to the judge of the Circuit Court in whose circuit the district (or any part thereof) of the Justice of the District Court by whom the fine was imposed is situated, and the decision on such an appeal shall be final."
This amendment covers an employer who refuses to obey a Labour Court order to give equal pay to a woman employee; he will be guilty of an offence and be punished accordingly. In the original draft a woman, in order to recover arrears of remuneration, would have to take a civil action in the courts. There would be duality of action and this amendment is designed to avoid that situation by providing that in a prosecution for an offence under the section the court may award to the woman concerned the arrears of remuneration she would have received had she instituted civil proceedings.
Amendment agreed to.
I move amendment No. 18:
In page 5, lines 17 and 18, to delete "the date on which the proceedings were instituted" and substitute "the date on which the relevant dispute was referred under section 6 to an equal pay officer".
This amendment is introduced merely to remove any doubt as to when precisely proceedings were instituted. As a result of this amendment a woman employee's entitlement to equal pay shall date from a date up to three years before the date on which her case was referred to the equal pay officer.
There was a certain vagueness in the section originally. I think the amendment meets the situation.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
I move amendment No. 19:
In page 5, line 22, to delete "place of employment" and substitute "place".
This is a consequential amendment on amendment No. 1 in regard to the meaning of the word "place".
Amendment agreed to.
Amendment No. 20 not moved.
Section 8, as amended, agreed to.
SECTION 9.
Amendment No. 21 in the name of Deputy Dowling has been ruled out of order.
Amendment No. 21 not moved.
I move amendment No. 22:
In page 6, line 1, after "a woman" to insert ", in respect of whose dismissal a prosecution for an offence under section 8 has not been brought,".
Where a woman is dismissed because she sought equal pay she can, under the provisions of this Bill, have recourse to the Labour Court or the ordinary civil courts. The purpose of the amendment is to provide that a woman so dismissed can only go to the Labour Court where she has not already instituted proceedings in the civil court. Again, this is to ensure there will not be duplication of action. Where she goes to the Labour Court in the first instance she can then go to the civil court. This is to speed formal investigation where a person can secure rapid redress and provide against the possibility of a conflict arising from a decision of the civil courts under section 8 and a subsequent Labour Court determination.
Amendment agreed to.
Amendment No. 23 is consequential.
I move amendment No. 23:
In page 6, lines 4 and 5, to delete "place of employment" and substitute "place".
Amendment agreed to.
Amendment Nos. 14 and 24 are cognate.
I move amendment No. 24:
In page 6, to delete lines 9 and 10 and substitute the following:
"(b) an investigation under this subsection shall be held in private, but the Court shall, if requested to do so by a party to the dispute, hold the investigation in public,
(c) where an investigation under this subsection is being held in public the Court may, if it is satisfied that any part of the investigation concerns a matter that should, in the interests of any party to the dispute, be treated as confidential, hold that part of the investigation in private,".
This amendment proposes to bring the provision contained in section 9 (1) (b), whereby an investigation of a complaint by an individual alleging dismissal for having sought equal pay shall be heard in private, into line with the provisions of section 8 (1) of the Industrial Relations Act, 1969, and we proposed a similar amendment in respect of section 7. This is in line with that.
Amendment agreed to.
I move amendment No. 25:
In page 6, line 13, after "a sum" to insert "by way of compensation".
The purpose of this amendment is to make clear that the function of section 9 is to ensure as speedily as possible some from of compensation to a woman because she sought equal pay.
Amendment agreed to.
I move amendment No. 26:
In page 6, line 16, to delete "six months' " and substitute "104 weeks' ".
Why the variation here? In the original the Minister had six months' remuneration; in the amendment it is 104 weeks, two years.
We extended it in case there was delay. I imagine this would happen only where there was undue delay after proceedings had been instituted. It is to ensure the person concerned will not be at a loss. The section provides that the Labour Court may direct an employer to pay to a woman dismissed because she sought equal pay a sum equal to the remuneration she would have received to the date of the court order. The original period was six months and the purpose of the amendment is to extend that period to 104 weeks. It is designed to permit her to recover arrears of remuneration.
Amendment agreed to.
I move amendment No. 27:
In subsection (1) (c), page 6, line 17, to add "and may by order direct her re-instatement in her former position."
We believe this particular subsection should be strengthened by the addition of the words "and may by order direct her reinstatement in her former position". A person might get compensation but not be reinstated and reinstatement might be a much more important aspect of the claim than the question of remuneration for the particular period.
I have been advised that such a provision would be open to objection on constitutional grounds. In general, the idea is to prevent or discourage dismissals by making it an offence to dismiss a woman employee who sought equal pay by providing penalties in respect of such an offence and, of course, by providing compensation where such an offence is committed. We are satisfied this approach is in line with the proposed EEC directive on the application of equal pay which provides in Article 5 that member states shall take the necessary measures to prevent any such injustice. However, my main reason for not being able to meet the Deputy is because of a possible constitutional infringement. I do not have the relevant Article of the Constitution it is thought to infringe.
Surely the more important aspect from the workers' point of view is reinstatement. The question of remuneration might not be of so much consequence. Remuneration might be all right in the big city but, when one is employed in an area in which employment is scarce, it could be a very serious matter. It would be more serious than being deprived of equal pay during the period. It could well be that this would constitute a major problem for the person concerned.
Progress reported; Committee to sit again.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m. on Thursday, 16th May, 1974.