This amendment is essential and desirable. If a person takes her claim for equal pay and is successful, she should be reinstated in her former position. It would be a weakness in the Bill if one could be successful in a claim and at the same time lose one's job. This would discriminate against the female worker. I hope the Minister will accept my amendment and so strengthen the Bill. The amendment will ensure that where an equal pay claim succeeds one will still have one's job. An employer might feel that an easy way to dispense with the services of such an individual would be by paying the required amount. As I said, it is essential and desirable that this amendment be adopted by the Minister in order to ensure that the person who makes the claim is fully and adequately protected.
Anti-Discrimination (Pay) Bill, 1974: Committee Stage (Resumed).
As I mentioned the last day, there were difficulties. We had considered such a provision when the Bill was being drafted but we were advised, on discussing this with the Attorney General, that certain constitutional questions relating to such a provision could be raised. This is mainly why such a provision as Deputy Dowling would desire is not included in this Bill. However, such possibilities of unfair dismissals arising because of the holding of a union office or for some other reason will be covered in legislation which I have already announced. This legislation would not be coming into effect until December, 1975, whereas the other legislation will be coming into effect, I would hope, once this House has given permission later this year.
While we naturally accept the Minister's assurance on this point, should there be any delay in introducing the second piece of legislation many people could suffer hardship and penalisation because Deputy Dowling's amendment is not being accepted. Could the Minister not accept the amendment and then we could await the further legislation?
The advice available to me from the Attorney General's office is that such a provision could be questioned on constitutional grounds.
Surely if a woman lost her job this would be discrimination with a vengeance.
The whole intent of the Bill is to avoid such a situation by having rather heavy penalties, and this should ensure that the situation which concerns the Deputy will not arise.
I fail to see how the Minister can say he is prepared to bring in legislation in another Bill to cover precisely this same aspect and yet say it would be unconstitutional in this Bill. The Interim Report of the Commission on the Status of Women says in section 147:
Certain European countries have, however, experienced a reduction in female employment after embarking on programmes of equal pay.
It goes on to indicate in section 154:
It is necessary to note, however, that the advantages of equal pay are likely to accrue mainly in the long term, while most of the adverse effects occur in the phasing-in period.
It is quite clear from the experience of other European countries and from the examination done by the commission that there are dangers in the phasing-in period. Therefore, it is desirable that there would be some protection. It is certainly not an anti-discrimination Bill, assuming there is no other legislation introduced, if an employer can dismiss a person and merely pay the amount that the court would find due in relation to arrears of equal pay. Such dismissal would certainly be a discrimination against a female. I can see no logic in the suggestion that another Bill would cover the point in precisely the same way and that it would not be unconstitutional, whereas it would be unconstitutional to put it into this Bill.
It would be very easy to cover this matter if the Minister would insert a clause in the Bill saying that an employee's position may not be worsened by any action she takes in order to achieve equal pay. In any kind of negotiations or in the transfer, let us say, of civil servants or local authority officials from one place to another, it is common to write in that their conditions of employment will not be worsened. This is a basic right. We cannot worsen people's position if they avail of our legislation to better themselves.
Deputy Dowling raises the point, if there are constitutional difficulties in the present case, how the same constitutional difficulties will not occur in the drafting of later legislation. That is a fair question. This problem obviously will not go away. The difficulties about legislation in relation to reinstatement will arise in that later legislation, but in that later legislation we shall attempt to put in statute form certain protections against unfair dismissals which should go a great deal of the way to deal with the temptation towards unfair dismissals. The same difficulty will still obtain about reinstatement.
However, while these difficulties do exist and mainly relate to interpretations of what the Constitution states in this area, I undertake to have this whole area re-examined in time for this unfair dismissals legislation which, as I have told Deputies, may still involve the same problem as we are faced with now. I already considered this amendment myself in framing this legislation, but the legal advice available to me suggested it could be questioned on constitutional grounds.
Would the Minister agree that the title of the Bill is an impediment to acceptance of this amendment? If the legislation was called the Conditions of Employment (Pay) Bill, 1974, could it not be made a condition of employment that the person would be so reinstated? The Minister is well aware that the re-instatement of the person is an absodute necessity. The Bill is farcical if an employer can dismiss a shop steward or someone else whom he sees as a threat and merely pay him the arrears of equal pay. It could well be that the employer could concede an equal pay claim to everyone else in the establishment except the one person. That person would have to proceed to court and, while winning his case, he would lose his job. Therefore, the legislation discriminates against the worker. Some undertaking will have to be written into the Bill to ensure continuity of employment for people and that they cannot be discriminated against in the way I have outlined.
The non-acceptance of Deputy Dowling's amendment may result in this legislation being negatived from the beginning. It will not encourage workers to seek equal pay if they think some kind of penal clause is hanging over their heads with regard to their employment. I suggest to the Minister that he might withdraw the Bill and have this legislation included in the omnibus Bill which has been referred to. In this way he would keep sacrosanct the principle of Deputy Dowling's amendment and we would have a real piece of legislation.
The title of the Bill is clumsy. The measure has been attacked on all sides, although I support the principle of the Bill. The Minister should bring forward the promised legislation or defer this measure until he is in a position to guarantee the right to workers that if they take action under legislation passed by the Oireachtas they will not be penalised. We owe this to the workers. If the Minister deferred this Bill until more complete legislation was ready, the House would surely speed the passage of such legislation.
This Bill has been criticised by the ICTU, the employers and, strangely enough, by some women's organisations. The Minister would be doing a service to the workers if he would defer this measure, expedite the new legislation and include the principle enshrined in Deputy Dowling's amendment.
The constitutionality of the title of the Bill does not involve us in any difficulty. We should keep a sense of proportion in this matter. While we may not be able to include this provision in the present legislation because of difficulties I have already mentioned, and while I undertake to see whether the difficulties that relate to the constitutional area of interpretation can be removed for later legislation, there is no guarantee of that so long as we have the present Constitution.
However, we must remember that an employer who is found guilty will be liable on summary conviction to a fine not exceeding £100 and on indictment to a fine not exceeding £1,000. He will be liable to payment of £10 per employee per day for each continuing offence. It will be an expensive breaking of the law for the employer who sets out to break the provisions of this legislation.
Deputy Moore has made an excellent point, that if a person felt he would be dismissed because of bringing an equal pay claim before the courts he might not grasp the advantages contained in the Bill. There must be adequate protection to ensure that, freely and without fear, a person may be able to have a claim processed without fear of losing employment. On weighing up the amount of retrospective pay a person would receive as against loss of employment, on many occasions that person would accept the lesser of the two evils, namely, to work at a lower rate of pay. This may not happen to a great extent in the cities but the situation could arise in the more remote parts where employment is scarce.
The commission reported that the estimated displacement of women workers in the manufacturing industries in response to the full impact of equal pay will be about 10 per cent. They estimate the phasing-in period at about five years and this would give 2 per cent per year. The figure of 10 per cent represents a substantial amount of female labour. If employers thought they could evade their responsibilities, or if people could be threatened with the loss of their jobs as against the extra remuneration, in many cases they would accept the lesser of the two evils.
The Minister must ensure that the employers do not evade their responsibilities, that an employee will not be afraid to make a claim because he fears the loss of his employment. The commission have stated there will be adverse effects during the phasing-in period and that there will be considerable difficulties with regard to female labour. We sympathise with the Minister in his desire to get the legislation through. We will not impede the passage of legislation provided it is reasonable and gives the necessary guarantees that people cannot and will not be victimised. No such guarantees have been given by the Minister in this legislation.
Each piece of legislation must stand on its own. If there are constitutional difficulties envisaged in another Bill, which the Minister has indicated, it means that when this Bill becomes an Act there will be considerable vagueness in its provisions and there will be no guarantee that people will be able to retain their employment. This is an important amendment. The Minister must examine this aspect of the matter and assure the House that the person who takes a claim will be adequately safeguarded and that people will not be afraid to take claims because of fears regarding their jobs. Would the Minister give us a full indication regarding the constitutional problems? He outlined this matter in a brief way.
I will give the necessary headings in that area. I am sure the Deputy does not want to go into case law; I would not be qualified to go into that area of interpretation. It relates to difficulties between Articles 40.3.1 and 40.6.1. Article 40.3.1 provides that the State will guarantee in its laws to respect, and, as far as practicable, by its laws, to defend and vindicate the personal rights of the citizen; the other Article guarantees liberty to exercise rights to form associations and unions. Based on case law, and relating to those constitutional provisions, I am informed this could be tested.
I undertake that in later legislation I will re-examine this area. This difficulty will still be there but in that legislation we should be able to limit the area of danger of an employee being dispensed with by an employer for any particular reason. The offences in this area are pretty large; an employer who broke the law in this area would be subject to heavy fines. I do not see it as a widespread problem but I undertake to look into the matter further in the later legislation.
The question of the right of association is not a factor to the retention of employment. From the interpretation of the Constitution by the Minister it does not appear to me that there is a constitutional problem. It is merely the question of the retention of employment. This is good business and is written into most agreements. It is farcial to put a Bill through this House, which gives no guarantee to the person that he will retain his employment. Surely the Minister could devise some formula to ensure continuity of employment for people who win their claims in court. He has already agreed that is desirable. As Deputy Moore has pointed out, this may impede people from seeking the benefits which the Minister so rightly envisages will be available under the Bill.
This negatives the Bill. There is no doubt that unscrupulous employers will take advantage of it to get rid of certain employees at the minimum expense to themselves. It provides them with an easy way to dispense with employees, much easier than giving them notice or dismissing them. As the Minister is aware, at the moment dismissals are minimal. The Minister will have to re-think this section. If there is no safeguard the Bill will be the Discrimination (Pay) Bill, 1974, rather than the Anti-Discrimination (Pay) Bill, 1974, because it will discriminate against the female worker who has her claim processed successfully and loses her employment. This is a weakness in the Bill.
The Minister said there is a constitutional problem here. If there is a constitutional problem in future legislation, what we intend to do will be negatived. If he tries to correct the situation in another Bill it will probably be found unconstitutional too. Before we pass from this section I would ask the Minister to include a section giving this necessary and desirable guarantee to female workers. Otherwise there will be discrimination and the Minister will be asking us to divide on a section which is discriminatory in itself. I do not know how the Minister can get around this problem, but something should be written into the Bill.
This difficulty must be corrected in the Bill because there is no guarantee, apparently, that the same thing will not apply in future legislation. If the Minister cannot find a suitable formula this legislation is a useless document, and it will be abused by unscrupulous employers. If there is no covering clause in the Bill, it will give an employer an undue and unfair advantage over workers. That is not the Minister's intention.
One cannot envisage a prominent "women's libber" being penalised under this Bill, but it could happen that a woman who merely wants to better herself and get equal pay for the job she is doing could be penalised. She would not be very vocal and she would be more likely to be penalised by an employer than a leading light in some women's liberation movement. We should cherish all the workers equally and we should not countenance for one moment the possibility of passing legislation which would allow an employer to inflict any hardship on one of his workers.
The Minister said it might be unconstitutional to accept the basis of Deputy Dowling's amendment but I submit that it would be far more unconstitutional to enshrine in our legislation a provision under which somebody could be penalised. I would have serious reservations about supporting this provision. Surely it is a basic civil right that no injury should be done to these women and that their position should not be worsened by any legal action they may take under this legislation. I would appeal to the Minister to defer this Bill until the new legislation is ready or to accept Deputy Dowling's simple amendment.
This creates a problem for people making a claim for equal pay. I do not believe it was the Minister's intention to introduce legislation under which a person making a claim would be at a disadvantage. Possibly there would be a revolt if legislation were enacted giving the employer the rights which he would have under this section. We would need a stronger assurance from the Minister than the vague one he gave to the House to the effect that he will embody it in other legislation but he still thinks it is unconstitutional. That is a very unreasonable attitude for the Minister to adopt in relation to the protection of a female worker who makes a claim. She may be afraid to make a claim because she may lose her job. This situation is created by the Bill and we must get an assurance that it will be remedied to our satisfaction.
I do not see where the question of the right of association comes into this at all. People have that constitutional right. This is purely a question of the reinstatement of a person in her former position. Perhaps there could be provision in the Bill that, after the passing of the Bill, employers would have to have a written agreement that where successful claims were made there would be a right to retention of employment. We cannot pass legislation in this House which discriminates against the people we are endeavouring to help.
In the Congress submission to the Commission on the Status of Women they indicated that the EEC Commission found that the problem was not that member states lacked legislation on the subject of equal pay but that it had not been fully enforced. That may well be what will happen here. We want to see fully enforced legislation which will protect the rights of the people who should be protected.
In some EEC countries they had the same type of section giving a commencement date which they were not able to implement because of the defects in some of the legislation that went through. It is desirable, now that we have time, that we should perfect this and produce a useful piece of legislation that will protect people rather than discriminate against them. This section is open to abuse. There should be some formula used, either that or an insertion that each employer should have a written agreement prior to the coming into operation of this Bill so that the right of reinstatement in cases such as this would be guaranteed to the individual. The fact that the Minister can give us no indication is a serious defect because it leaves the way open for people who want to avail of the vagueness of this Bill to siphon off, at small cost to themselves, workers who they fear might cause them some problems such as trade union officials or shop stewards.
This is a serious defect. Some absolute assurance must be given and we must have in this Bill provisions to ensure that there will be no discrimination. This is a section of discrimination and it is a contradiction in terms to call this the Anti-Discrimination (Pay) Bill when it contains a section which does not afford to a worker who makes a claim the protection to which she is entitled.
Sixty years ago James Connolly chided the Irish women for the fact that up to then the attitude of Irish women was one of submissiveness to the conditions in which they lived. It is sad to think that we would, after 60 years, consider adopting legislation here which discriminates against a person who would have the courage or the audacity to claim equal pay for equal work. This is the whole basis of the Bill but the Bill has this Achilles heel whereby a shop steward might well suffer dismissal from a firm because she claimed as her right under this Bill equal pay for equal work. Having won her case, she would then be dismissed. The Minister—I am sure he is acting on the best advice he could have—suggests that the Bill could be unconstitutional if we were to insist that she be reinstated. When one considers the many changes in the Constitution effected by the Supreme Court in recent years one wonders whether what is constitutional and what is unconstitutional depends entirely on the learned members of the Supreme Court and how they interpret the law. We should include Deputy Dowling's amendment in the Bill and let the savants, if they want to, contest the Bill in the Supreme Court. The employers would be in a much better position to do this than would a working woman. Why should she have to go to the Supreme Court to have this matter tested? Let the employers, through their wealthy associations, contest the Bill after we have passed it here. If some combination of employers feel that it is unconstitutional, they can go to the Supreme Court but it is only fair that they should have to bear the costs. Alternatively, if we want full equity, I suggest that if any person contests this Bill with Deputy Dowling's amendment included in it in the Supreme Court the State should bear the costs. In that way we would be fair to everybody. My personal view is that if we pass the Bill with Deputy Dowling's amendment in it and if an employer feels it is unconstitutional, he has a remedy and if the Supreme Court rules that it is repugnant to the Constitution then we must accept that, they being the final arbiters in our scheme of things.
The Minister cannot go wrong by including Deputy Dowling's amendment. An employer has got a redress but what hope has a woman working in a factory and being paid £15, £20 or £25 a week, who claims that she should be paid the same as the male doing the same work, of going to the Supreme Court with the very high cost that would entail? Why impose this on her when there is a very simple way out of it? If the Minister does not do this, I am afraid this Anti-Discrimination (Pay) Bill will be very discriminatory and there will be very little respect for it among the people who work in the factories, offices and shops. The Minister has two choices. He can accept Deputy Dowling's amendment or he can withdraw the Bill and bring in a comprehensive piece of legislation which will do all the things the Minister has said he hopes for and will include this vital guarantee for the woman who has the audacity, temerity or courage to claim her rights under this Bill. We must ensure that in our democracy she will not be discriminated against. If the Minister does not do this, the Bill will not be a true reflection of the thoughts which we thought were behind it.
I am satisfied that this legislation is certainly an improvement on the present situation against the possibilities of dismissal. The penalties and fines involved make it a very expensive matter for a recalcitrant employer and that combined with the strong trade union presence in the country. I am satisfied that by the end of this year the legislation that will be on the statute books will give almost total defence to any employee in any part of Irish industry against unfair dismissal.
Surely the Minister could include an unfair dismissal clause in the Bill? The systematic downgrading of women is one of the weapons that employers have used in other countries and can use here with the protection of this section. It is undesirable to have a section under which there can be a systematic downgrading of women without fear that the Bill offers any resistance to unscrupulous employers. We know from our experience of legislation that has been enacted elsewhere that there has been this systematic downgrading of women. I am not sure that other legislation was as vague as this but I am positive that if this Bill had been introduced by us the Minister would have sought to have the protection of the worker enshrined in the Bill, and rightly so. This is an employer's section. There is little protection here for the worker. The problem of loss of employment is of major importance.
The Minister should tell us how he will deal with the systematic downgrading of women. If it is not possible to insert in the Bill the necessary safeguards he should indicate that he will enshrine them in further legislation. This Bill must be comprehensive and complete. It should give the benefits we all hope females will enjoy after this Bill has been passed. If we leave the door open, as in this case, we will have some employers who will downgrade their staff; we will have the worker who is afraid, because of the loss of his job, to make the claim and we will have protection for the employer who wants to dispense with the services of a person in a very unscrupulous way.
The Minister must be able to embody, somewhere in this Bill, the safeguards he hopes to embody in another Bill. There is no guarantee, when we pass this Bill, that the Government will ever bring in further legislation with the safeguards the Minister spoke about. It may well happen that other pressing matters will come before the House so it could be quite a long time before we get down to the type of legislation which the Minister envisages. No one knows what is likely to happen from day to day or from month to month. We all know the many good ideas and intentions which Government Ministers have had in relation to legislation for the benefit of workers that were nullified in some way by the time factor.
Would the Minister consider inserting a section on Report Stage that will give the type of cover I mention? He need not bring it in in my terms but in some terms that would be acceptable to this party. Could the Minister insert some type of protection so that workers will not be left in the unsatisfactory situation they will find themselves in if the Bill is completed in its present form? If the Minister gives this indication now we could deal with the remaining sections of the Bill fairly rapidly. We have no intention of holding up legislation which will benefit workers and I am quite certain the Minister wants to have such legislation enacted. However, we cannot agree to this aspect of the Bill which is discriminatory.
From time to time we hear pleas from the trade unions and the employers, in particular, that they want to attract women back into industry. They also tell us that because women have left employment to get married their work force is rather limited. Employers hold out certain inducements to bring women back to work in factories and offices. The women complain that income tax rates are too high and they prefer not to work. We have a case here where women would think twice before going back to work in an office or factory. They might feel if they sought equal pay with men in that factory or shop they would end up being dismissed.
I have certain reservations about attracting women back into industry. We have a very high rate of male unemployment. At the same time I hold that women must have equal rights with men in the matter of wages and salaries. I regard this as their basic right and I cannot but think that (a) this part of the Bill was hastily drafted or (b) that the whole Bill was hurried, as has been suggested in other places. Therefore, one could hardly expect Deputy Dowling or I to accept it without putting up as stern a fight as we can on behalf of the women whom we feel will be discriminated against. We will not stand for cut-price labour backed by State legislation. The Minister should accept Deputy Dowling's amendment or rule that a woman's position will not be worsened by the fact that she sought equal pay with a man who is doing the same type of work.
This should be a basic civil right. What is the Bill all about if it falls down on this very important point? We hear platitudes about equal rights but when it comes down to legislation it appears that we are powerless to ensure that the very basic right we are claiming for women can be guaranteed by the State. We have studied this Bill very carefully. Deputy Dowling went to the trouble of tabling important amendments on this point. I believe the Minister actually agrees with our point. He may say that to insist that the women be reinstated would be unconstitutional.
We have suggested to the Minister that he include this provision in the Bill and let those who seek to make it unconstitutional bring it before the Supreme Court. If they rule that it is unconstitutional we will accept it. At least we could say we went the whole way in trying to vindicate the rights of women. It would be very wrong of us to accept this meekly because the Minister says that somebody has said that it is unconstitutional. We have our duty in opposition to scrutinise all legislation that comes before the House. We scrutinised this legislation in our committee rooms and we are satisfied we have to press for the inclusion of some guarantee for womens rights in this instance. I know that there are not many unscrupulous employers but the fact that they are there means that we should guard women against them. We would be hypocritical if we urged women to go for their full rights in industry and then told them, we passed legislation which might cost them their jobs if they pursued the matter. We have been discussing this matter for over an hour and we should decide to put in a small guarantee of a woman's right to claim equal pay.
Is Deputy Dowling withdrawing the amendment?
Will the Minister give us an assurance that between now and Report Stage he will formulate some form of cover to ensure continuity of employment to a person who makes a claim under the Bill? Our claim is very reasonable. We have all seen how this matter can be abused. The Bill is a failure if we agree to it and we find that it discriminates against the very people we are trying to help. Apart from the systematic downgrading of women there could be other factors that would arise which might entice the employer to evade his responsibilities. Does the Minister intend, as suggested in the commission's report, to repeal section 16 of the Conditions of Employment Act, 1936 which prohibits the employment of female workers in certain forms of industrial work? As there have been no orders enforced under this section of the Act, they feel it should be repealed at the earliest opportunity. Perhaps under this section an employer would seek to discriminate and all we want to do is ensure that there is a reasonable safeguard for the person making the claim. Would the Minister give an undertaking that between now and Report Stage he will endeavour to get some formula that will give the necessary and desirable protection? We can assure him that we will not impede any progressive legislation or legislation that we believe is a help to the workers and we will give him every support to ensure that such legislation is implemented at the earliest possible moment. Nevertheless, we do not want to be a party to legislation that would in any way discriminate against workers as this subsection does. If the Minister gives us that assurance, I think we can move on. This is a reasonable request because every reasonable person will agree that with this defect the Bill is useless at present.
The Commission of Inquiry on the Status of Women came to the conclusion that women would not be displaced from employment because of any legislative provisions regarding equal pay. They examined the whole area exhaustively in the Irish context and that was their final opinion. I would also draw the Deputy's attention to section 6 (2). Under it, where it is not reasonable to expect the employee concerned to refer a dispute in relation to such a post to an equal pay officer, the matter may be referred to an equal pay officer by me. In other words, where the employee has reason to think that retribution might follow if he or she looked for what is his or hers under the law, the machinery is there whereby in such a case the law may be invoked without any ill effects for the employee. I assure the Deputy that I think the women of Ireland in Irish industry will be safeguarded comprehensively in regard to equal pay when this Bill becomes law.
I also assure him that the comprehensive legislation dealing with unfair dismissal, which I hope will be before the House shortly, should further improve the situation. It would be dishonest if I undertook that the Constitutional difficulties to which I have already referred would disappear between now and Report Stage. Deputies must have regard to the Constitution; and where our advice from the best authority is that any provision in any legislation could be held to infringe constitutional provisions we must pay due regard to that advice.
Surely the Minister does not mean to imply that in some section or sections of the Constitution there is discrimination against workers. I thought the reverse was the case. If the Minister is now advised that it can discriminate against workers as he has indicated, I think the matter must be left open to further examination. I do not think the Constitution is so unfair or unjust that it would discriminate in this way against workers, that if the question of the retention of employment is embodied in a written agreement it is an unconstitutional clause in the agreement. Most, if not all, written agreements with which I have been concerned from time to time contained this clause concerning retention of employment where a claim was being pursued. I think every union would insist on this desirable protection. Personally I cannot see that our Constitution is so unjust that it would tend to discriminate against Irish workers, but if that is so the Constitution should certainly be amended to ensure that this discrimination is eliminated. I do not believe it is there. This would be a good matter for a referendum. I am positive that nobody would vote against the protection of the workers if such a discriminatory clause exists. As a layman, I cannot see it. Somewhere in the Bill there must be a safeguard. I do not think it is provided in section 6 to which the Minister referred. It is true that the Minister has power to refer to the equal pay officer, but the Bill must contain a built-in guarantee that the person who makes a claim and is successful in it will retain his or her employment. I see no constitutional problem there; it is only common sense that the person would retain the employment if successful.
It is news to me that we have a Constitution under which there can be discrimination. Now that this is widely known among employers the Minister must take immediate measures to have the Constitution amended so as to ensure that the discrimination which he is advised exists is eliminated as early as possible. Otherwise employers will avail of this section or sections of the Constitution to relieve themselves of responsibilities they probably felt they had up to now. This is the most serious aspect of the debate so far: that discrimination is built into the Constitution against workers. I believe that is not the case and the Minister should look for additional advice on the matter and come back to the House on the Report Stage with some formula to safeguard the rights of workers adequately. This is just and what is just must carry.
In the interim report on equal pay in August, 1971, it was indicated that the estimated displacement of women workers in the manufacturing industries in response to the full impact would be about 10 per cent if it was phased out in over a five-year period, 2 per cent each year. The phasing-in period is slightly different here and we can expect that if the 10 per cent figure mentioned is valid there will be a serious situation for the women. I have no doubt there will be problems in the initial stages of the Implementation of the Bill and for this reason we should not create any further problems. It must be possible for the Minister to find a suitable formula to deal with this problem. If he undertakes to have another look at this section between now and Report Stage we will not hold the Bill up any further. There is no doubt that this is an undesirable situation.
I am astonished if our Constitution has anything written into it that would allow an employer to use the big stick. If that is so this Bill has no meaning at all. I pointed out on Second Stage that there was a danger of this Bill becoming a discriminatory Bill rather than an anti-discrimination Bill because a lot of female workers were employed simply because they were cheap labour. If there is in a Bill which is supposed to give women their rights something which prevents them from getting them then this House should accept Deputy Dowling's amendment.
If a female appeals under this law and wins the appeal no law should prevent her from going back to her employment because she only sought what she was entitled to. If there is such a provision in the Constitution it is not just. If it is there the Bill has no meaning because there will be employers who will get up on their high horse because a person looked for what she was entitled to under the Bill. Such employers, if the employee is successful, might use the big stick, if employers can use the big stick in such a fashion then we should accept Deputy Dowling's amendment.
There is no problem at all about a woman looking for her rights under this legislation. This legislation protects her if she looks for her rights and includes penalties if the employer refuses to grant her her rights. Deputy Dowling sought in his amendment a right of reinstatement and I referred to certain problems about reinstatement after wrongful dismissal. The constitutional clauses on which legal opinion rests state that we may not force a particular employer to take on a particular person in a work contract. That relates to that particular constitutional provision relating to freedom of association. Legal opinion inclines to the belief that this freedom of association includes freedom in the sense that the State cannot force an employer to employ a particular person. That is the kernel of the constitutional provisions involved.
The chief aim of the Bill is to make it a very expensive business, by including heavy fines, for any employer who breaks sections of this legislation. It makes it difficult for an employer and it heavily penalises the employer who does not carry out the provisions of this legislation. That is the chief hope of this legislation. We will have officers to carry out this work. We will have provisions in this legislation whereby if an employee feels nervous about prosecuting a claim on her own I may do so on her behalf. I can assure the House that this gives a very big advance legislatively to women in Irish employment.
There is a difficulty of interpretation relating to the reinstatement and that difficulty relates to the freedom of association guaranteed under the Constitution. I undertake to examine this area to see what other possible action is open to me in legislation dealing specifically with unfair dismissals, legislation which I will have before the House shortly.
In the comparable British legislation on equal pay there is no section whatever on the whole area of dismissal. Looking at the provisions of this legislation I am satisfied that Deputies can be at ease that there is a solid gain here for women in Irish employment. The idea that there will be some extraordinary victimisation of women consequent on the passing of this legislation is not shared by the Commission on the Status of Women who went exhaustively into this over many years. I do not see that there is a basis for fear that this will happen when I consider the general situation in the country, the strength of our trade unions and the provisions in this legislation. There will be a great disincentive to any employer to break the provisions of this legislation.
If the Minister took a case on behalf of a woman and won it would this give her any guarantee of being reinstated? Can the employer still dismiss her?
There could be no guarantee given to her under our present legislation.
Then I am afraid women will call the Minister the chief male chauvinist if he starts a case on behalf of a woman who finishes up being dismissed. The story was told about our Constitution that it drove our women back into the kitchen, something which it did not do, but while it did give women the dignity of employment we cannot ensure, 40 years later, that a woman will not be dismissed. I accept that the people can only change the Constitution but the Minister can alter this Bill to ensure that women get their proper rights. It would be less expensive to give the women their rights under this Bill than to hold a referendum on a change in the Constitution. I suggest the Minister do this by accepting Deputy Dowling's amendment.
The Minister has indicated that under the Constitution we have no right to force an employer to take a person into his employment. This is not a question of taking a person on; it is a question of the retention of a person in specific employment rather than reinstatement. If the term was "retention" would the Minister accept that was constitutionally in order? There is no question of forcing an employer to take on somebody against his will. What I am concerned about is a person who may have been in employment for 20 or 30 years. In my view there is a basis for retaining such a person in employment if that person brings a claim under this legislation.
It is absolutely necessary that a person should be able to take this action and retain her former position. I can see no justification at all for anything to the contrary. According to the last census 287,900 women were gainfully employed here, and in Dublin the figure was 110,600. This is a substantial figure. The introduction of this Bill will create problems but we must have the necessary safeguards built in. When this Bill passes through the Oireachtas many women will be seeking parity of pay with males.
If the amendment is not suitable perhaps the Minister could suggest a more appropriate type of wording which would be acceptable to all of us to ensure that this right will be given. If there is some difficulty about the Constitution—I certainly did not know of this before, but Deputy Moore referred to it—then the particular Article should be erased at the earliest possible moment. The Minister apparently agrees it is not desirable in legislation to leave this kind of outlet for an employer to discriminate against a worker. If this amendment is not made the Title of the Bill will be a contradiction in terms. I am sure the Minister has at his disposal people who will be able to advise him on this so as to enable him to amend the Bill in such manner as to give or guarantee the desired cover to employees who might be affected. That is the very least that should be done to ensure there will be no discrimination.
The function of the Bill is to attempt to prevent or discourage dismissals by making it an offence to dismiss a woman who sought equal pay by providing penalties in respect of such an offence and providing compensation to any woman so dismissed. This approach is in line with the proposed European Economic Community Directive on the application of equal pay which provides, in Article 5, that member states shall take the necessary measures to prevent any dismissals. The matter which worries Deputy Dowling and other Opposition Deputies relates to the question of the freedom to associate. I suppose an argument can be put. It is plain that under our Constitution it could be argued that freedom to associate includes the employment contract and, that being so, it could equally be argued that an employer would make the argument under the Constitution that, if he were forced to employ a certain worker, then equally that worker could be forced to work for a particular employer. This would be taking the argument in the other direction. Many of us would not care for this to be written into legislation and neither would anybody reasonably ask for such a provision to be written into our legislation. I mention this merely to underline certain difficulties in connection with framing legislation where you have a written Constitution. This is our predicament. The Constitution lays open the possibility that freedom of association be interpreted in this way. This renders it impossible to have the amendment the Deputies opposite wish to have included in this legislation.
I do not see where freedom of association comes into this at all. Nobody need work for any particular employer if she does not want to. I do not think there is anything in the Constitution to the effect that a worker is under any compulsion to work for any particular employer. We are discussing the case of a female worker who makes a claim for equal pay, wins her case and her employer refuses to take her back. There is nothing wrong with her work. We maintain that such an employee should be reinstated in her employment. I do not see where freedom of association comes in.
This would be a minority situation and I certainly do not visualise many workers who would like to return to their employment in the conditions outlined by Deputies. These instances would be very rare. In our modern conditions Irish workers in general would not willingly seek employment with such an employer.
After a strike the workers have to go back.
The situation is not on all-fours. I think we are on the right course. The employer will be heavily penalised. The employee will be fully vindicated. In 99 per cent of cases an employee would not wish to return to her employment, I believe, in such conditions.
The Minister argues on the premise that there is a highly organised labour force from a trade union point of view. Of the 288,000 females in employment I believe the majority of them are not organised. Some of them would be employed in remote parts of the country and they would actually be disadvantaged by the Minister relying on the trade union or some other organisation to ensure reinstatement in the circumstances we have been discussing. Incidentally, if the worker insisted on reinstatement would she be acting unconstitutionally? That would appear to be the case from what the Minister has told us. That would be a very serious matter. Admittedly highly organised workers can force an employer to do almost anything. I believe, as I say, that the majority of female workers are not highly organised. Indeed, that runs right through the report of the commission. This is a factor—that they are not organised to the same degree as male labour. Heretofore they could be subject to pressure from the male labour force but now they will be subject to pressure from the employers as well.
The Minister said the Bill is designed to prevent dismissals but we are concerned about areas where dismissals will have taken place, where there is a new situation altogether. It is not a question of forcing an employer to accept a particular worker; this is where the worker has been in employment for a number of years. Then there is the situation where it is not a question of forcing an employer to take on somebody against his will. This section gives a right to an employer to dismiss who he likes and he can meet his obligations under the Bill by conceding retrospection. Six months' remuneration is a small amount to an employer and if the employee goes to the equal pay officer and ultimately to the court, is it still not difficult for the employer to meet his obligations. Indeed his minimum requirement may be two months' or one month's remuneration. The court would give a quick decision and the employer, at very small cost, can dismiss who he likes and has the protection of this Bill to do so.
This reminds me of the Banks Bill whereby the banker was immune from imprisonment while the ordinary worker, the porter or the charwoman, could be imprisoned for impeding the appropriate officer. Here we are giving absolute freedom to the employer, and nobody on this side accepts that he should have that freedom. What we are seeking is an assurance from the Minister that he would embody in the Bill on Report Stage the protection we are anxious to see. I am sure the Minister feels there is a weakness here that should be corrected.
I should like to put one question to the Minister. The section aims to give protection to any lady who might feel disposed to exercise her rights under this legislation and my question to the Minister is whether the protection is not completely illusory. Surely he accepts that in the case of a lady who would pursue her rights to the point that she was dismissed, before doing so she would naturally consider the consequences to herself in the matter of seeking subsequent employment elsewhere. This is not in my area but I am wondering does this excuse the employer from redundancy commitments.
Without drawing considerations like that into it, if we are contending in this legislation the giving of new rights to ladies, we must accept that what is in the Bill in this regard is only a sham. What it is presumed in this Bill would occur, would not occur very often, but any lady who would pursue her rights to the point of dismissal by one employer would have a very poor recommendation going with her to a new potential employer. Because of that she would be more than reluctant to pursue her rights of protection under this section.
I would emphasise once more what I have said in relation to the person who found herself dismissed unfairly and out of work—this minority of cases. The presumed reluctance of such a person would hold much more strongly where there was no organised work force. In a single small employment the employee would have even less reason to return to work to the same type of employer. The penalties here are heavy—up to two years' remuneration and fines of up to £1,000. They are very heavy penalties for an employer who wishes to break the provisions of this legislation.
I have promised that this whole matter will be dealt with in a comprehensive piece of legislation dealing with wrongful dismissals. I will certainly give very great attention to a re-examination of this whole constitutional area. The problem will still be with us but I can certainly undertake to the House that we will control, in as comprehensive a statute form as possible, this employment contract between employee and employer.
Of course, the point is made that, in collective bargaining arrangements, it sometimes happens that the trade union concerned looks for reinstatement of the employee but, as Deputy Dowling well knows, the whole area of collective bargaining is not quite the same thing as statute law being passed by this House. We are all aware of where this has happened in real life situations. In setting down legislation in this House we must ensure, by our best endeavours, that no provision we bring before the House could be questioned afterwards on constitutional grounds.
Finally, I would point out that it is significant that the Commission on the Status of Women did not recommend powers of reinstatement. I would also point out that similar British legislation has no such provision nor do any of the EEC directives. Our main reliance is placed on heavy penalties attached to the employer who breaks the law. That puts the position as succinctly as I can.
Perhaps it is not correct for me to press the Minister on this but maybe I should indicate my attitude. I remember, when I was operating as a schoolteacher, I always told students that the foolish question was the one they never asked. Perhaps the Minister could state what would be the position of a worker vis-á-vis his protection under the Redundancy Act if an employer dismissed him in the fashion provided for in section 9. Would it be a way open to an employer of circumventing his obligations, under the Redundancy Act, of depriving an employee of his or her rights under the same Act?
The job loss envisaged under it does not arise here but, in answer to the Deputy, the job loss envisaged under the redundancy legislation would be job loss in the normal, say, rationalisation system; it would not arise by this will of the employer in relation to breaking the law. Therefore, I do not see how the situation would arise at all.
Does the Minister imply that an employer could dismiss all the females in his employment and just meet the compensation aspect? Apparently this is a right the employer now has. He can contest it in court and concede them the pay to which they are entitled. If he had a large labour force, he could clear out his entire establishment and recruit new personnel at a much lower rate. I think it very important that the employer should not have this protection. An employer could dismiss all his personnel, especially if they had reasonable wages, and claim under this Act that it was constitutionally correct. He could give them up to six months' remuneration which the court had deemed necessary and he would then be constitutionally protected from re-instatement and could employ new labour at a much lower rate. Would this not leave a loophole whereby an employer could avail of this section of the Act to obtain cheap labour at the cost of many people pursuing their just rights? I think this is a very important aspect, he could dismiss all his female labour force, particularly if it was a large one.
The Minister indicated that the Commission on the Status of Women, in their report, did not indicate reinstatement. I believe the commission would have assumed the necessary safeguards for reinstatement would be incorporated. The Minister speaks about EEC legislation and says that nowhere in that legislation is there mention of the question of reinstatement. If there is nothing incorporated in EEC legislation to cover reinstatement, then I think that that is bad legislation also and needs to be amended to ensure that there is adequate protection for the worker.
It is a bad comparison to make, to say that we are in line with them, if there is this defect in both the report of the commission—which is not accepted in full by the Minister: there are certain aspects of it he did not accept, the commencement date being just one—and in EEC legislation. I do not think for a moment that the Commission would have envisaged that legislation would have been enacted which would deprive women of their employment. Had they envisaged such a situation, I feel they would have recommended necessary protection in that respect also. In relation to EEC legislation, I feel it must be built in somewhere because I believe that workers' representatives throughout Europe would have put this point to protect females in claiming their rights. For that reason it is not good enough for the Minister to say: "I will look at it in further legislation." The rights of workers must be fully and adequately protected in this legislation.
All we are seeking is an assurance between now and Report Stage. We do not want to impede the enactment of this Bill in any way or its passage through the House. But if we do not get that undertaking from the Minister, we could not attempt to discuss the Report Stage until we would have had an opportunity of examining the constitutional aspects the Minister now raises and this might take some time. Therefore the Minister should take this into consideration. If he does not feel it is very important to get it through straight away, then we would have an opportunity of having it examined by some constitutional lawyers who would be able to give us information on the two sections of the Constitution which he claims are discriminatory against workers.
At first glance I feel they are of no concern. It is a question of retention of employment and not a question of forcing an employer to accept someone he dislikes. If the argument the Minister puts forward is that we cannot force an employer to accept somebody he does not wish to employ, then it is admitting that the employer can dismiss people he does not like and have the necessary constitutional backing for not re-employing them. I do not think that was ever intended by the Constitution. I could not interpret it that way. The Minister now has the option of indicating that he will seek a formula for giving this protection between now and Report Stage, or give us an opportunity of having this particular aspect fully examined by constitutional lawyers from whom we will seek advice. This may take some time and, as I have already said, we do not want to impede the passage of this Bill in any way.
The Minister has two choices open to him and, whichever is the lesser of the two evils, will suit us.
This is equal pay legislation. I am satisfied that all the material is in this legislation to ensure that women in employment will get equal pay for work of equal value. I am convinced also that the penalties to be invoked against employers who do not carry out the provisions will be heavy enough to ensure there is no abuse. There is later legislation, which I have undertaken to introduce, on unfair dismissals in which I hope to put, in statutory form, the employee's right to his job in his place of employment, but that is not appropriate at this point.
Is the amendment withdrawn then?
Could the Minister not find any solution to the problem at the moment?
I am afraid I have met the Deputy in all respects possible.
The Minister has not really met us at all on the question of the worker here. If that is the ultimate here, that we must press it to a vote or withdraw the amendment, I do not want to embarrass any person in this House by having to vote for bad legislation, or having to vote for a penal clause in a Bill going through this House. I do not want to force the Minister. This is a penal section. It deprives the female who has won her case in court of the right to reemployment. If the Minister cannot see his way to giving us an undertaking that he will try to find some solution, we will look for an opportunity of examining the constitutional position in depth so that on Report Stage we will be able to put down the amendments which we will be advised are constitutional. It is our duty to protect the people who are entitled to concessions under this Bill. It would be unjust of us to allow a Bill to go through the House which would contain such a section.
I know that the Minister is anxious to have the Report Stage of the Bill at an early date but it would not be possible to deal with it until we have had an examination made of the constitutional position of the worker. The Constitution is not so unjust that it would tend to deprive Irish workers of their right to reinstatement. The trade union movement would not be happy with a section in the Bill which would so deprive workers. We must have an opportunity of examining the Bill in detail. We must protect the position of the workers.
I have given an undertaking that in the legislation concerning unfair dismissal which should have its First Reading in this House within some weeks the matter of the constitutionality of reinstatement will be considered. It will be foremost in such legislation. There will be ample time for the Deputies to consider that legislation and to consider reinstatement in the context of that legislation. The current piece of legislation deals with equal pay. Reinstatement and dismissal are not dealt with in the comparable British legislation or in the requisite EEC legislation. I do not think that the Deputies' comments in relation to reinstatement are quite valid in the context of this legislation.
I do not think we should be guided by defective legislation in Britain or the EEC. Our legislation must endeavour to ensure that problems such as we envisage do not arise. If Britain or the EEC are prepared to accept a situation in which an employer has the right to dismiss and not to reinstate a person after her claim has been justified, we should move away from British or EEC legislation. It is the Minister's duty to ensure that there is the necessary cover here. If the Minister has this other legislation prepared, could he not find a section in it which is appropriate and introduce it into this Bill here now? There is no guarantee that the Minister will get that other legislation through the House anyway.
My objection is that we should have a situation here in which the State initiates legislation to encourage people to seek equal pay and having done so we cannot then guarantee them that they will not be dismissed and made pay a penalty for seeking equal pay. Having encouraged them to take this action, we cannot guarantee that they will not be dismissed.
This is a foolish situation. The Minister says that in Britain they have not got this claim for reinstatement. In Britain employers can be forced to take a number of handicapped people. The British comparison is not a good one. I have never yet accepted the fact that the British legislation is the be all and the end all of progressive legislation, or that the EEC legislation is perfect either. The EEC is still in a formative state. In a free society an employer has the right to hire and fire employees. In a totalitarian state the State takes on this function.
We must ensure that a person who has worked in a firm for years has accumulated rights in that firm. If such a person takes the opportunity of acting under legislation passed by us, we must ensure that he is not punished for that action. This is one of the things which brings democracy into disrepute. In the case of a person who claimed equal pay and won her case and was then dismissed by an employer, the unions might say: "Under the legislation we cannot insist on you being reinstated". The employee could have a word with the shop steward who would then blow the whistle and there would be an unofficial strike. Then that worker would be reinstated.
It is a mockery of democracy where State legislation cannot guarantee a woman reinstatement in her job but where the people by their unofficial strike can give her that guarantee. There is enough trouble in the industrial world at the moment without encouraging unofficial strikes in order to afford rights to people. The fact that such strikes would be unofficial does not take away from the merits of a woman's case. We will get no thanks from the trade unions who seek to ensure that the unofficial strike is outlawed as far as possible.
In such a case I would be inclined to talk to the people working in the same job and to point out that I was being penalised, asking them what they are going to do about it. If one person stands at a factory gate with a placard saying that a trade dispute is in progress, very few people will pass that picket. In this Bill we would be forcing such a woman to claim her basic rights but the State cannot then protect her but if she appeals to her fellow-workers to take unofficial action they can protect her.
Our legislation must be progressive. It must not encourage people to take unofficial action while seeking their rights.
I would like to agree with the previous speakers and to express my concern for what is pretended to be here in section 9. It appears to me that section 9 is a non-event. The title of the Bill is the Anti-Discrimination (Pay) Bill. It shows that discrimination existed and can be shown to have existed over the years but it was accepted at a given time as not being discrimination at all. In the light of new approaches we are setting out in a piece of legislation to remove any form of discrimination whatever. Section 9 in layman's language means that any unfortunate lady who would be so bold as to contest what might be regarded as her right under this legislation does so at the peril of losing her employment. The legislation almost guarantees she will lose her employment and the only compensation she will get will be £100 from her employer. We are doing this with what might be described as malice aforethought. The discrimination, which already exists, is there without our blessing.
Deputy Dowling has directed the Minister's attention to this injustice and he is required to listen sympathetically. Otherwise the section is a facade. We are pretending to do something on behalf of the ladies, but that is not the case. Can it be shown under any legislation that, if a male employee pursues what may be regarded as his right, he will lose his employment? I may be wrong, but I do not think such legislation exists nor is there anything in the Constitution which covers the point.
The Minister asks us to accept that if there is an omission here—and I am sure he is as convinced as the Members on this side of the House are that there is—that it will be provided against in some future legislation There is an obligation on the Minister and us to ensure as far as possible that legislation is complete and precise. Certain precautions should be included in this legislation. It is a poor excuse for the Minister to say that he will introduce separate legislation to do this. Surely this is relevant and appropriate to the legislation now before the House. It is necessary that the amendment proposed by Deputy Dowling be accepted.
It is said that under the Constitution no employer may be forced to reinstate a certain worker. If legal men put that interpretation on the Constitution, one cannot deny that right to them. Every day over the past years we have been accepting situations where workers had the right to contest their positions against any employer. Having won their case they were entitled to remain in their employment. I do not see how it can be contended that anything different or contrary to that principle is envisaged in Deputy Dowling's amendment.
Two very important points were raised by Deputy Moore and Deputy Tunney. As Deputy Moore pointed out, this could be the cause of an unofficial strike. It is generally accepted by the employers that people on unofficial strike automatically dismiss themselves. If we had an unofficial strike the workers would automatically dismiss themselves. It would be unconstitutional for anyone to force the employer to take back the striking personnel. This is a very important point.
Deputy Moore pointed out that the unofficial strike was the only weapon available to the persons concerned. We are putting legislation through this House where the only solution will be an unofficial strike in order to be reinstated. It would be unconstitutional for anyone to put pressure on an employer to re-employ all or any of the people on strike. This matter should be looked at in great depth. The interpretation of the Minister and his advisers has given us food for thought. This does not apply only to female employees. This is an anti-discrimination pay Bill and applies to male and female workers. Section 10 reads:
...shall be construed as applying equally, in a case converse to that referred to in those sections, to a man in relation to his remuneration relative to that of a woman.
This means that men can be affected also. Will the breadwinner be protected by this Act? A breadwinner proceeding with an equal pay claim could find himself on the labour market without any redress and the employer would be backed by the Constitution. I do not hold that the interpretation given by the Minister of the Constitution can be applied in this situation because this is a question of retention. Men and women will be debarred from employment because the employer wishes to avail of section 9 of the Anti-Discrimination (Pay) Bill, 1974. The Minister will have to go further on this in order to ensure that neither males nor females will be unjustly dismissed. How will the Minister deal with unjust dismissals?
If we bring in legislation which indicates that the only way to solve the problem is by strike action, then I think the legislation is very defective. The other point is that where, say, a whole concern would automatically dismiss themselves, this might be to the advantage of the employer. If there was a large labour force available and if the employer wanted to have a general tidying up, he has a loophole here, and it would be unconstitutional for them to be taken back, having dismissed themselves. This applies not only to an equal pay claim but also right across the board to other aspects as well. Therefore, not only the women of the country but the men, the breadwinners, would be affected by this defective piece of legislation.
We could have the same prolonged discussion on section 13 as we are having on section 9. We want to ensure that when we get down to section 13 this defective provision, which leaves it open to an employer to dismiss a person unjustly, will have been modified. There is no guarantee that the Minister will ever introduce another Bill. It may well happen that pressures and future problems will be such that they will demand the entire time of this House. If this Bill were taken in conjunction with the other legislation and we could discuss both measures together, that would be a different situation. We must be satisfied that the type of legislation which is to follow this Bill will be adequate to deal with the problem. There is no point in rushing into the House with piecemeal legislation.
If we were to follow that practice, we could just bring in one or two sections of this Bill today and next week we could have the third, fourth and fifth sections. What is needed is a comprehensive Bill that will include the required safeguard. What we want the Minister to do, even at this late stage, is to embody in the Bill before it goes through this House finally some wording that will cover the question of unfair dismissal, which is different altogether from the right to associate or from the right of the employer not to employ. This is the question of retention of employment and some safeguard should be written into the Bill.
Deputy Dowling——
Before Deputy Moore continues, I understood earlier that Deputy Dowling was intimating his intention to withdraw the amendment on the understanding that Report Stage would not be taken today.
I said there were two options.
Is that the position?
Not today. I understood the Minister might want it at an early stage, maybe tomorrow. If we are to withdraw the amendment we certainly want an opportunity of having this question examined by constitutional lawyers or other legal personnel to see if it does not conflict with the Constitution. That would still give us an opportunity of putting down an amendment on Report Stage. However, we want some time to consider this matter in depth. The withdrawal of this amendment would mean that the legislation would be defective. The Minister has two options, first, to try to get a suitable wording to ensure that there will be no unjust dismissal or to ensure that retention in employment or reinstatement in former employment——
The Chair has been very patient and has had to listen to a great deal of repetition, and repetition is not in order. We have had a long debate on this amendment and the Chair must now get a clear intimation as to what the Deputy's intentions are. Is the amendment being withdrawn or must the Chair put the question?
I would like to say a few words, Sir, before you put the question. In these days of multi-national companies and huge combines a case could arise where a woman, or a man for that matter, would claim equal pay. Whether the claim was successful or not does not matter; the employee would then be dismissed and word could be sent around through that multi-national company or combine that that person is not to be employed again because she might set an example for other employees to follow that line. If there was a provision in the Bill that she must be reinstated or that that should be pressed as far as possible, it would then show these huge combines and multi-national combines that they just cannot get away with that here.
We who have to attract so much capital and outside interests, while we welcome these people, must show them that we regard the dignity of the person as being foremost in our thoughts and that our legislation is based on this principle. Deputy Dowling, Deputy Tunney and myself have been very chivalrous this evening in that we have been defending the rights of women all the time but when we come to section 10 we shall have to defend the rights of men. Can you picture anything more pathetic than a situation in which a man, having claimed parity in salary with a woman, not only loses his case but, worse still, is then dismissed. Is it not pushing it too far to ask us, in our free society, to claim parity with women and to suffer the ignominy of dismissal? The Minister should withdraw the Bill, as Deputy Dowling requested, or to include on Report Stage some provision that will meet our wishes. Otherwise we will land ourselves in a lot of trouble and we will be accused of passing legislation that is discriminatory.
Not alone should our legislation be just, it should be seen to be just. We are not trying to hold up the Bill. It is a short Bill and it gives many safeguards to women; in fact, section 9 contains four subsections while section 10, which applies to men, has only one section. We give the Minister credit for thinking this Bill was necessary. However it should be an effective piece of legislation. It is no use our saying all workers are equal but some are more equal than others. Neither a man nor a woman can claim immunity from the wrath of a boss who wants to sack them. There is one way to deal with that kind of employer but it is not by legislation. In any dispute the trade unions would have to support the law——
I regret having to interrupt the Deputy but he appears to be embarking on a Second Reading speech. His remarks bear little relevance to Deputy Dowling's amendment.
I am trying to stress to the Minister that Deputy Dowling's amendment is essential. I am sorry if I am repetitive but we feel strongly on this matter. I have a feeling the Minister sees our point of view but he may be inhibited by some advice he has received. I would suggest to him, as was done earlier, that he let someone contest this in the Supreme Court. Let the employers do this if they wish; the onus should not be put on any man or woman to have to take those steps.
Have we an assurance from the Minister that he will try to formulate some proposals that will meet our point of view?
We have taken the best advice available to us. On constitutional grounds we cannot have any such provision in this legislation. It would be less than honest of me if I said that will change between now and Report Stage.
Will the Minister get second advice on this?
I can assure the Deputy the best advice has been got but, on the First Reading of the unfair dismissal legislation, to which the question of reinstatement more properly belongs, I undertake to have the whole area re-examined.
For the record, can the Minister give us the two Articles of the Constitution to which he has referred?
They are Articles 40.3.1º and 40.6.1º
Amendment No. 28 is cognate with amendment No. 16.
I move amendment No. 28:
In page 6, line 21, after "the order" to insert "(or, where there is an appeal under subsection (4) against the order, within two months of the date of the order of the Circuit Court on the appeal)".
It provides that if an employer does not comply within two months with an order of the Labour Court awarding compensation to a woman dismissed because she sought equal pay, he shall be guilty of an offence. Section 9(4) permits such an employer to appeal to the Circuit Court against the order of the Labour Court. It is possible that the hearing of such an appeal could take longer than two months and, in the circumstances, if he had not obeyed the order of the Labour Court the employer concerned could, in theory, be deemed to have committed an offence even though the case was the subject of an appeal. The amendment meets that problem.
Amendment No. 29 is cognate with amendment No. 17.
I move amendment No. 29:
In page 6, after line 25, to insert the following new subsection:
"(3) (a) 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.
(b) The amount of a fine imposed under paragraph (a) shall be paid to the plaintiff.
(c) The payment by a convicted person of a fine imposed under subparagraph (a) 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.
(d) 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."
A similar provision already exists in section 8 (3) (a). Under section 9 (2) of the Bill an employer who does not comply within two months with an order of the Labour Court awarding compensation to a woman dismissed because she sought equal pay will be guilty of an offence. To recover the compensation due to her, the woman involved would have had to take a civil action in the law courts. The amendment prevents this situation arising by providing that in a prosecution of an offence under section 9 (2), the court concerned may award to the woman the arrears of remuneration she would have received had she taken a separate civil action in the courts.
(Dublin Central): If the firm concerned had gone into liquidation, is there any provision whereby the woman could recover the arrears?
That is a problem that relates to all firms going into liquidation. It comes under the companies legislation and, as the Deputy knows, such a review is under consideration by the Minister for Industry and Commerce at present. Under current law she would take her place on the list of creditors.
When people are dismissed for legitimate reasons they accept their dismissal but the case could arise now that a person in this position could come back after six months and claim that dismissal was because of equal pay. On the Second Reading I said that it would be desirable that a written document be agreed between the union and the employer regarding the basis of dismissal where there is likely to be claims for equal pay. The Labour Court should not be saddled with the responsibility of long and tedious examination of cases if the dismissals were not because of equal pay. If my suggestion were accepted, the work of the officers dealing with these matters and the burden on the court would be lessened. They could make a realistic assessment of how dismissals took place.
If people can make a claim in retrospect after a period, the way is left open for people who were dismissed for one reason or another to claim that it was on the basis of equal pay. Can the Minister provide in the Bill that, as from the passing of the Bill, when a dismissal takes place, there should be an agreed document between the unions and the employer stating the precise reason for which the dismissal took place? This would ensure that there would be no time-lag in genuine cases and that genuine cases would be dealt with more rapidly than cases which were brought in the full knowledge that the claim would be lost.
In the early stages of the operation of this Bill there will be confusion. There will be a considerable number of claims, possibly, over the first six to 18 months. It is desirable that there should not be frivolous claims so that those who are entitled to the concessions in the Bill would be able to obtain them at the earliest possible moment.
It would be quite easy in each case for the court to find out when the dismissal took place, and when the last payment was made to the employee. On the wider question of the reasons for dismissal, and so on, that would be appropriate to the unfair dismissals legislation which will be coming before the House in a matter of weeks.
The same thing applies to section 10 as applies to section 9 in relation to dismissals. Males can be victimised in the same way as females. That is undesirable. We will have a look at the constitutional position to see if there is a way around it and we will put down our own amendments for Report Stage. There can be discrimination against males and females.
There is no need for section 10. If the Minister would amend "Where a woman complains" to "Where a person complains" in section 9 (1), he would obviate the necessity for having section 10 in the Bill. I hope section 10 will never have to be used. I know of very few cases where women earn more than men doing comparable work. The Bill could do with a bit of tidying up and section 10 is hardly necessary.
I do not know whether the Minister visualises this section ever being used. I cannot imagine any industry or employment to which it would apply. Under this section a man could claim equal wages with a woman for equal work and, if he lost his claim, he could be dismissed. This brings us back to the basic weakness in the Bill. The State cannot guarantee a man's basic right to be re-employed. In a free society we accord to employers the right to hire and fire, subject to certain regulations. In a totalitarian State the State would take that right to itself. This is not a case of hiring. A man may have worked for 30 years in one job. He then claims equal pay and he is dismissed. The State has legislated to ensure that he will be dismissed.
At present when the establishment is under great pressure and is often criticised, it is very necessary in a democracy to show the people that the State, in its wisdom, is legislating in the best possible way for its citizens. This Bill encourages a man to seek equality in the office, or shop, or factory, and because he decides to use the legislation passed by the Oireachtas he could be dismissed. He is foolish enough to believe that the omnipotent State guarantees him certain protection but he could be dismissed from his job. He may be too old to be employed somewhere else and the State says: "Sorry. We did our best."
This is not good legislation. The man could not be protected by his trade union who would have to support the law of the land. The Minister said it would be unconstitutional to write into this Bill a section compelling an employer to re-employ that worker. That man would speak to his colleagues in the factory and say he was being dismissed, whereupon somebody would blow the whistle and there would be an unofficial strike. In this age, very often an unofficial strike is successful. It would probably be successful in this case, too, but that is not the point.
The point is that through bad legislation the State is encouraging a man to take certain action and, having taken that action, he can be penalised.
The State can offer no protection and his trade union can offer no protection. He has to take illegal action to achieve his purpose which he set out to achieve legally under new legislation. A man of 55 or 60 years of age may have to take unofficial action to save his job. This is one of the worst pieces of legislation ever introduced into this House. I accept that the Minister's intention was good. We should not have cut price labour anywhere. Under this Bill we are encouraging people to take certain action which may lead them into trouble and which may cost them their jobs. The State says it cannot do any more for them. Therefore, the moral of the story is: "Do not mind what the State says in its legislation unless you want to lose your job."
Will the expenses of workers who take action through the courts be met or will they have to meet their own expenses? In the event of an employer winning a case who will pay his expenses? Will they be paid out of this fund? Have workers who take action through the courts to meet their own costs and has the employer who wins his case to meet his own costs? How will the costs be met in each case?
There is a committee looking into this whole question of free legal aid but the Deputy is right in thinking it would be at his own cost.
The employer would pay his own costs?
Yes.
Assuming that there was a series of claims against an employer purely for the purpose of taking him to court, knowing full well that the outcome would be to the disadvantage of the employer, would the employer have to meet his own costs in all cases?
A series of actions?
Assuming that in a particular concern a group of workers decided to proceed to court whether or not they had a valid claim?
Obviously, the court would be issuing a verdict.
The court could grant costs against the worker?
On either side.
In the case of what was believed to be the legitimate claim of a worker which he lost in court, the employer could then obtain costs from that worker notwithstanding his ability to pay.
The Deputy will agree that it would be unusual in such a case for the court to find against the worker.
Many cases will be won and lost in the courts. I am talking about a worker who believes he has a just claim.
I do not think many cases will find their way into court in that fashion. The Bill is quite specific.
Even if there was only one case. If the worker lost the case would he have to pay the employer's costs?
It would be, of course, in the course of discussion but if he lost the case he would have to pay the costs of the lost case.
So the sections of the Bill that deal with the right to court also carry the liability of costs in the case of a worker being unfortunate enough to lose the case?
It would be similar to all other legislation of this kind. That is the present position in relation to such legislation. There is a committee looking into this whole question of free legal aid but that does not specifically come under this legislation.
Is the committee examining this particular type of case?
It is looking into the ramifications of all our industrial legislation and how it impinges on workers and costs.
How soon will we have that type of legislation?
I cannot answer that. I do not know.
We have a Bill then going through the House under which a worker will have to pay his own costs in the event of losing a case? It is quite possible that even in the event of winning he will have to pay his own costs?
I would not see that as a possibility.
If the Minister takes an action on behalf of a worker, who would pay the costs, whether he was successful or not?
I suppose that would be at the discretion of the court.
It is a bit rough on the employer, is it not?
This Bill is very rough on the employer.
It is not really.
The Deputy walked into that.
Not the total Bill.
Would the Minister have to pay personally or would the Department of Labour have to pay? The situation there is that it might be to the advantage of the workers to ensure that every case was referred to the court by the Minister so that they would not have the burden of court costs.
There is a provision whereby they can get me involved.
So the idea would be to ensure that they involve the Minister so that the Minister or the Department would have to pay. It would be out of this fund then that the cost would be paid?
That is possible.
It could not be held against the Minister as an individual?
I am sure the Minister has taken into consideration the concern in the commission's report in relation to the phasing-in period. Does he envisage any problems arising from the fact that this will take effect as from 31st December next year? The commission felt that a phasing-in period of five years would be necessary. Does he envisage any problem in regard to the shortness of time? Why did he chose this date? Was is because of EEC legislation or was it because the British Act comes into operation at approximately the same time?
In the various reports in relation to the implementation of equal pay we find that everywhere there are problems. The British equal pay provisions come into operation on 29th December, 1975. A period of rather less than five years was considered appropriate in Britain for the implementation of the principle of equal pay. Ours is a little over a year. The commission found that the problems in the EEC were not that member States lacked legislation on the subject of equal pay but that it had not fully been enforced. Will the Minister ensure that this legislation will be fully implemented by the 31st December? According to the various reports the date is the one problem that caused concern. Even where the date of commencement was specified a large gap still exists and many people have not got what they are entitled to. It says in one of the reports——
This section merely mentions the date on which the Bill shall come into operation, nothing more.
It is a very short phasing-in period.
We covered a lot of this on Second Reading.
Yes, but this is Committee Stage. I am not disagreeing with the date but we would like to know whether the Minister believes it will be implemented or is it just window dressing? Would he give some indication as to why he chose to depart from the recommendations of the Report of the Commission on the Status of Women which he has quoted so many times? Their phasing-in period was much longer and if the Minister accepted their report, why did he depart from their suggested date?
The national agreements have gone in this direction. I wished to remain in step with EEC developments. These were briefly the reasons and I do not see much dislocation arising from it.
I move amendment No. 30:
To delete all words after "the" and substitute "Conditions of Employment (Equal Pay) Act, 1974."
The Title Anti-Discrimination (Pay) Act, 1974 is certainly not appropriate because section 9 is a section of discrimination against the worker. We consider this a reasonable amendment. Most of the legislation that has gone before in this field has been termed conditions of employment and to ensure that there is no confusion and that it will be readily identifiable we feel the title of the first Bill the Minister introduced in the House would be the most appropriate.
I cannot give way on the Title.
There is a section of the Bill that is discriminatory. Because of that it is not appropriate to call this the Anti-Discrimination (Pay) Act. The Minister should change the title. If he does not wish to change the title, then he should change the Bill to meet our requirements on the other sections. Otherwise this will be the Discrimination (Pay) Act, 1974.