Anti-Discrimination (Pay) Bill, 1974: Committee Stage (resumed).

Debate resumed on amendment No. 30.
To delete all words after "the" and substitute "Conditions of Employment (Equal Pay) Act, 1974."

Moving this amendment I referred to the fact that section 9 (c) has been debated in the House for quite a considerable period. It is an area of discrimination against male and female workers. We feel that as a result of this discrimination, and because no effort has been made by the Minister to ensure that this area would be sealed off so that discrimination could not take place, there must be a change in the wording of the Bill as indicated by the amendment. It is a very responsible amendment. If we are to take the long form of the title of the Bill it is:

An Act to ensure equal treatment, in relation to certain terms and conditions of employment, between men and women employed on like work.

This would give way to the change which we demand in the sub-title in section 13. We have discussed section 9 (c) fully. We have clearly indicated to the Minister, who has agreed that there is discrimination in this section, that if a Bill is to be termed an anti-discrimination Bill we want to ensure that it is, in fact, an anti-discrimination Bill. The Minister did not see fit to embody in the Bill wording that would clearly indicate that if a person was dismissed and took his claim to a court and established his claim after it had been processed by the court that that worker was then entitled to equal pay. If at that stage the Minister tells us it is unconstitutional to demand that the worker would be reinstated in his former position, surely there is an onus on us to protect the people who wish to avail of the legislation put through the House? It is rather amazing to find that we would bring in a Bill which would leave the way open to employers to dismiss a person because of his claim where the court had found that person was justified in the pursuance of that claim, and yet at the same time the person would be victimised because he could not have his employment back. For that reason, anti-discrimination is a contradiction in terms of what we have already discussed here today. The section on the Conditions of Employment (Equal Pay) Act would be more appropriate for that reason alone. The question of anti-discrimination must be complete and absolute. It is not so in this case. I would ask the Minister to indicate why this particular term was used and why the Bill which is discriminatory in itself is called the Anti-Discrimination (Pay) Bill.

,Cavan): In introducing this Bill the Minister recognised that there is and has been discrimination against women in the field of employment. The very introduction of this Bill recognises that fact and sets about remedying it. When the Bill was first introduced it was entitled the Conditions of Employment (Equal Pay) Bill, 1973. As I have said, the Minister in introducing the Bill recognised that there was discrimination against women in the field of employment. This Bill sets out to put an end to one aspect of this discrimination. The Minister decided to change the title of the Bill to its present title in order to make it clear that this was the first step on the road to removing discrimination against women in the field of employment generally. That was the only reason that the title was changed. The Minister dealt with this fully in his Second Reading speech and I do not think it is necessary for me to go over the whole field again.

Women are discriminated against in the field of employment opportunities, opportunities for promotion and recruitment for employment. All these fields of discrimination and others will be dealt with in future measures introduced by the Minister. They will then be known as the Anti-Discrimination (Employment Opportunities) Bill, Anti-Discrimination (Promotion) Bill and so on. It cannot seriously be suggested that there is anything sinister in the present title of the Bill or that the title in any way takes away from the job which the Bill has set out to do. On the contrary, it is the beginning of a new series of Bills aimed at eliminating discrimination. Deputy Dowling cannot be all that serious in the arguments he put forward or in his amendment. Having regard to the assurance I have given on behalf of the Minister that this is the first of a series of Bills to be introduced. I am sure Deputy Dowling will see and appreciate the reason for changing the title of the Bill and will withdraw his amendment.

The Minister stated that this is the first of a series of Bills to emancipate women. This Bill may do far more harm than good. On Second Stage and on Committee Stage we pointed out that in section 9 we had legislation which would encourage women to take action in order to get equal pay for equal work. If a woman lost her case she could be dismissed by her employer and she would have no redress. The point I am trying to make is that the State is setting out to liberate women; we are encouraging them to take certain steps to enable them to get their rights under this legislation, yet we are told that the State cannot guarantee that if an employer dismisses them, they will have redress under this Bill. We asked the Minister to write in a guarantee that this would not happen to any man or women who took this action. He told us that he cannot do this. The best legal advice told him that this would be unconstitutional. I put it to the Minister that if there is any doubt about the constitutionality of this Bill he should include in it a paragraph or sentence setting out that one of the basic rights of an individual is the right to work. In an employer decides that that is unconstitutional let him go to the expense of taking this matter to the Supreme Court——

(Cavan): I do not wish to interrupt Deputy Moore but I respectfully submit that what he is saying is not in any way relevant to the amendment before the House which is simply to amend section 13, the title to the Bill.

This is the whole point. The present title is misleading. This Bill is full of discrimination against women. Therefore, to call it an Anti-Discrimination Bill is a fallacy. How can it be called an Anti-Discrimination Bill when a woman who decides to test her claim for equal pay, whether she wins or loses her case, will be dismissed? Surely the greatest discrimination is when one is dismissed from one's employment. Therefore, I support Deputy Dowling's amendment to change the title.

The point I am trying to make is that the State is leading people to believe that they have certain rights and then saying that the State cannot guarantee those rights. Why not put in the Bill that a person shall not be dismissed because she claims equal pay for equal work? Then, if an employer decides that this is unconstitutional, I suggest that he goes to the expense of contesting this in the Supreme Court. If the Supreme Court rules that this is repugnant to the Constitution, then I accept that. Better still, let the State, being fair to all its citizens, submit the case to the Supreme Court and if it is found to be repugnant to the Constitution, then I will accept that. I wish to show that the title of the Bill is wrong. It will encourage unofficial strikes by people who will try to safeguard the interests of the worker who was dismissed from his or her employment. I support Deputy Dowling's amendment to change the title.

(Cavan): Deputy Moore seeks to make the case that the title of the Bill is misleading. The Bill deals clearly with the question of discrimination in regard to payment and sets out to ensure that women will get equal pay for work of equal value. Nothing could be clearer from the title than that it deals with discrimination with regard to pay only. The title of the Bill is “Anti-Discrimination (Pay) Bill, 1974”. Any man, woman or child reading that title will know that this Bill deals with pay and pay only. The Minister made that clear at all stages and in all contributions to the Bill. Other Bills will be introduced later on. I put it to the House that there is no substance whatever in the argument put forward by the Opposition Deputies seeking to prove that the title to the Bill is misleading. I repeat that the Bill clearly says that it is an Anti-Discrimination (Pay) Bill and nothing else.

I thank the Minister for clearing up the situation. It is clear to us from his statement that the Anti-Discrimination (Pay) Bill relates to pay only. It does not matter whether a person is dismissed even though he has a valid claim; he makes it and the court adjudges that his claim is justifiable. The Minister now tells us that it does not make any difference that the person, male or female, cannot assert the right to be reinstated in his or her former employment. We have here positive discrimination. We are told it would be unconstitutional to press the employer to take back a man or woman whose claim for equal pay had been justified in court. As we said earlier, a person, possibly a breadwinner, could be singled out by the employer, because he made a claim for equal pay, and the employee would have no redress.

The Minister tells us that this Bill relates only to pay, but the other consequences are important to us. We want to ensure that the men and women who make a claim under this Bill and who believe they are entitled to make such a claim will not find as a result of this legislation that they will not be reinstated in their former position. Surely it is discrimination to pass legislation through this House which ensures that an employer can dismiss a person on the basis of an equal pay claim and need not take him back. This is a greater discrimination than any other discrimination the Minister may have covered in the Bill. As has been pointed out here today, it may impede people from making claims for equal pay under this legislation, in that they have to balance the fear of losing their employment against the additional remunaration to which they would be entitled under this legislation.

This is one of the worst pieces of legislation, from the workers point of view, that has ever come before this House. Unless the Minister is prepared to amend it to our satisfaction, we are not prepared to let the Bill go through. We indicated to the Minister today that we wanted an opportunity for our legal people to examine the constitutional aspect of the amendments we put before the House at an earlier stage in relation to discrimination. We have got some advice and we shall be putting down amendments which we feel sure will not be unconstitutional and will compensate the worker for loss of employment.

The Minister indicated today that there are other measures to protect the worker coming before the House. Surely the Minister should protect the worker in this Bill. He might never bring in another measure. The pressures of the time and so on might well mean that no other Bill would come before the House and that this Bill would be enacted and would discriminate against the people we hope to help. As we pointed out. we are quite sure that was not in the Minister's mind in introducing this legislation, but here we have absolute discrimination against men and women in sections 9 and 10.

I would remind the Deputy that he is rambling far from the amendment before the House.

It is a question of discrimination as against anti-discrimination. Having regard to section 9, it is a contradiction in terms to call the Bill an Anti-Discrimination Bill, and surely one is entitled to refer to the discriminations embodied in the Bill. We spent three hours today pointing out to the Minister that this type of discrimination will not be tolerated. We feel it would be unfair to allow a Bill to go through this House under which workers could be victimised by unscrupulous employers. A very serious situation has arisen in so far as an employer can dismiss a man for any reason, justifiable or unjustifiable, and it would be unconstitutional to ask that that man be reinstated because a section here protects an employer to this extent.

Acting Chairman

I must remind the Deputy that we are on section 13, amendment No. 30, and no other section may be referred to.

We have pointed out that there is discrimination in this Bill and therefore we cannot pass a Bill with a title which includes the words "anti-discrimination". It is unfair to ask the House to pass a Bill which is loaded in favour of an employer to discriminate against workers.

The first Bill the Minister brought in was in 1973 and he called it the Conditions of Employment (Equal Pay) Bill, 1973. Even if we changed the title, we know there would be discrimination in it, but we could deal with that on Report Stage. I would point out that the long title to the Bill does not refer to anti-discrimination: it refers to the conditions of employment of men and women on like work, and surely it is consistent with the long title that our amendment should be accepted. We would hope that the men and women who hope to gain advantage from the Bill would not gain it purely on the basis of two-, three- or six-months' remuneration at the expense of their jobs.

We cannot accept this Bill in its present form. As Deputy Moore and other speakers pointed out, the section indicates that while the claim may be a valid one, and the court upholds it, at the same time the employee concerned cannot be reinstated. This is discrimination and the title of the Bill contradicts its provisions as indicated in section 13.

Acting Chairman

Is the amendment withdrawn?

Progress reported; Committee to sit again.
The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday 22nd May, 1974.