This Bill was passed by the Dáil but amended by the Seanad. There are five Seanad amendments.
Anti-Discrimination (Pay) Bill, 1974: From the Seanad.
The Dáil went into Committee to consider amendments from the Seanad.
I move that the Dáil agree with the Seanad in amendment No. 1:
In subsection (3) "provision" deleted wherever it appears and "section" substituted.
This is purely a drafting amendment and there are no legal complications arising from it.
While this is an improvement on the original definition of "place" and is much wider in scope, it falls far short of what we proposed at a much earlier stage.
We are talking of amendment No. 1 which is purely a drafting provision.
Would it not have been possible to have used language that would be more easily understood by the ordinary person?
What is involved here is purely a drafting arrangement.
The wording sounds foolish.
Are we not talking here about the reference to "place"?
I can assure the Deputy that the amendment has nothing to do with the term "place". Perhaps the Deputy is not looking at the correct sheet of amendments. It was the Deputy's party who, in the Seanad, suggested this amendment.
Question put and agreed to.
I move that the Dáil agree with the Seanad in amendment No. 2:
In paragraph (c), line 21, "on each person" deleted.
Section 3 (c) provides that two persons shall be regarded as employed on like work where the work performed by one is equal to that performed by the other in terms of the demands it makes on each person in relation to such matters as skill, physical or mental effort, responsibility and working conditions. That section, as drafted, represents an attempt to put into legal effect the recommendation of the Commission on the Status of Women in relation to equal pay.
That recommendation indicated that equal pay should apply in circumstances where it is established that the jobs performed by men and women are of equal value in that the demands, for instance, in relation to skill, physical effort, responsibility and working conditions made on the woman are equal to the demands made on the man in respect of the work each performs. The amendment before us proposes the deletion of the words "on each person" in section 3 (c). There is the possibility, as was pointed out in the Seanad— admittedly a remote possibility—that within the terms of this Bill, as drafted, the measurement of the work performed by the man and the woman could be related to the demands it makes on each person and, thus, could be related to a person's individual characteristics rather than to the content of the job. It was our objective that the relativity should be based on the content of the job and it is in these circumstances that the amendment proposes the deletion of the words "on each person".
The amendments I have before me appear to be different from those to which the Minister is referring.
The Deputy must have the wrong list of amendments.
Question put and agreed to.
I move that the Dáil agree with the Seanad in amendment No. 3:
In subsection (1) (d), line 32, "and may recommend her reinstatement in her former position" added.
Subsection (1) of section 10, as drafted, provides that the Labour Court can direct an employer to pay to a woman, dismissed because she has sought equal pay, compensation by way of arrears of remuneration. I had considered the inclusion in the Bill of a provision which would make it compulsory to reinstate a woman so dismissed. As I pointed out during the discussions on previous Stages of this Bill in the House, certain difficulties of a legal nature were mentioned against the inclusion of such a provision in the Bill. I made the point that the Bill as drafted should discourage employers from dismissing a woman who sought equal pay. Heavy penalties were laid down. An adequate inspection force is provided for in the Bill. It would be almost impossible for employers to resort to sharp practice such as penalising a woman for looking for her rights under the Bill.
I have already indicated that it is my intention to examine the entire question of reinstatement in the context of the Unfair Dismissals Bill which I have already undertaken to bring before the House as soon as possible. I hope to have that Bill introduced later this year. The amendment before us, while not adding to the powers of the court in the matters of dismissals, because there is no power given which would provide for reinstatement, may be of assistance in allaying any anxieties a woman might have before taking proceedings under this Bill for fear that the court might not be in a position to recommend her reinstatement. It may also, in conjunction with the provisions of the Bill relating to dismissals, discourage employers from dismissing workers who have sought equal pay.
Deputy Dowling moved an amendment on Committee Stage which would make provision for a Labour Court order redirecting reinstatement where a woman's claim for equal pay was judged to be well-founded. We went over this ground and discussed the legal difficulties which prevented reinstatement. There the matter rests at present. This section will not give compulsory power to the court but it should help to allay anxieties. When some Opposition Senators put forward this point in the Seanad I accepted it in the spirit in which it was offered. It at least wrote the responsibility into the legislation in regard to reinstatement.
I move acceptance of the amendment.
This is one of the big defects in the Bill. We feel that there is not adequate cover for the person making the equal pay claim who is dismissed because of that claim notwithstanding the fact that her job is still available within the concern. She cannot be reinstated under present legislation. If her job is not available adequate compensation should be paid to the individual. Where her job is still available some means should be sought to ensure that a person would apply for equal pay. The situation at the moment is that a person may not seek equal pay on the basis that she may be dismissed and that she could not be reinstated in her former position. As already pointed out, there is a possibility, particularly in remote areas, where jobs are not available for female labour in the same volume as they are in the cities, that people would think twice before making an equal pay claim.
The Minister has indicated that he is preparing new legislation which will cover this aspect. Why was this not fully covered in this Bill? Claims for equal pay will be made under the present Bill. It is important that all aspects should be properly covered. We fear that some employers may avail of the opportunity of dismissing a person on the basis of an equal pay claim while at the same time the desire to end that person's employment may have been there for some considerable time on some other basis. Because the situation arises following an equal pay claim there is no safeguard for the individual who makes the claim. She might be unjustly treated. We are leaving it open to employers to dismiss people who have no means of rectifying the situation other than to obtain the amount to which they would be duly entitled under the Bill, when it becomes an Act, for the period for which they claimed equal pay.
That is a grave defect. It will discourage many people from seeking equal pay. It gives too much power to the employers in regard to the dismissal of persons. They would be free to ensure that a woman so dismissed cannot be reinstated. The employer would have to meet his responsibility only in relation to the very small degree of cover that is in the Bill. A fine is no guarantee. We do not know whether the maximum fine would be imposed on the employer. Any fine, even if it was the maximum fine, would mean that an employer might be glad to dismiss a person and pay a small amount. Other factors may be involved. There may be a question of redundancy. It may be a cheap way of dispensing with labour.
I hesitate to interrupt the Deputy but he is clearly straying far from the Seanad amendment under discussion. Remarks must be confined to the amendment under discussion which is to add words to section 10. The words are "and may recommend her reinstatement in her former position".
The words "and may" are not just good enough. Something more definite should be inserted in the Bill. If a person has a valid claim she is entitled to reinstatement. The position should not be that somebody "may" reinstate her. If an employer wants to dispense with the services of a person there is no way of ensuring that that person can be re-employed. Under this Bill there is no cover for the person concerned. This is a grave defect.
We are not debating the Bill. The Bill has already been passed by this House. We are debating the Seanad amendment.
The words "may recommend her reinstatement" are not sufficient. We have many other amendments of a more positive nature. This should have been more positive. It is a weakness. We trust that future legislation coming before the Dáil will not be piecemeal legislation but rather comprehensive legislation which seals off all avenues such as this one where an employer can take advantage of his workers. Under this section an employer could dismiss anyone he desires to dismiss.
The section is not under debate.
There is no means of reinstatement compulsorily. This is an advance on what was there. This leaves it to the discretion of someone. We have been told by the Minister that even if the court ruled that a person should be reinstated that decision could not be enforced. It is a sorry state of affairs if a watered down amendment like this is accepted. The people who are dismissed will get very little consolation. While this amendment gives a ray of hope, it is still not positive enough. The Minister promised to introduce legislation but he did not mention if it would be debated before the House rises. This Bill is open to abuse by employers. I hope that the Minister will bring follow-up legislation——
We should not anticipate the introduction of legislation.
The Minister said he would bring in a trinity of legislation and this is just one part. One part cannot be divorced from the others. If there is something in another Bill which will buttress this Bill because it is ineffective and incomplete, then we have every right to make our comments on the other legislation.
Not at this stage. We are now dealing with the Seanad amendments only.
Will the Minister give an undertaking that in the following legislation the defects in this Bill, dealing with the reinstatement of people to their former position, will be rectified in full? Will the people who are sacked because they claimed under section 10 be reassured that another Bill will ensure that their reinstatement to their former positions will be possible and that therefore they can claim equal pay without fear of losing their employment?
I appreciate that the Minister may have some difficulties with regard to this amendment which, in my view, is the kernel of the Bill. It can be said that a chain is as strong as its weakest link. Any Bill is as strong as its weakest subsection. This amendment states that "the Court may recommend"—in other words, it may or may not recommend depending on the mood of the Court.
Suppose a woman claims equal pay and is dismissed. Her case will be widely publicised as a warning by employers' organisations. The court may recommend her reinstatement to her former position but they might do the other thing. My point is this: having encouraged her to seek equal pay and having set up the machinery to deal with its application, the State cannot guarantee that the woman because she exercised her democratic right will not be worse off than she was before this legislation was introduced. The Minister promised new legislation.
If it were possible to safeguard the woman's position, why was it not done under this Bill? I understand from outside sources that there are constitutional difficulties in forcing an employer to employ any person. If that is so, I cannot see the Minister being able to alter future legislation. Would it be possible to amend this section further and say that "and the court will recommend her reinstatement to her former position"? To change the word "may" to "will" would make the section stronger. If the court says "No, we will not do this" they are entitled to do that under this Bill. We should say that "the court will recommened" or "the court must recommend". As it stands, section 10 may render this Bill useless because women will not use it for fear of losing their employment. If this is so, it would be far better if this Bill were not introduced. It has raised hopes. Its title "Anti-Discrimination Bill"——
The Deputy is straying into general comment on the Bill. That is not in order.
A woman may be discriminated against because she sought to acquire a status recommended in this Bill. We are leading her up the garden path or to the Labour Court and then leaving her unprotected. I wonder what will be the reaction of the women's militant organisations when they read this Bill?
I feel very strongly about this section. As I pointed out before, there is a danger of discrimination in this Bill which may prevent people from applying for their rights. As Deputy Dowling said, this section is not strong enough. Let us take the case of a woman who has a very nice job in the country and does not want to lose it. She will be afraid to apply for her rights, because of the way this section is worded. The words "the court will recommend" should be inserted. This is the only way to ensure that there will not be more discrimination than there was before the Bill was introduced. This Bill stands or falls on this amendment. The Minister is setting out to abolish discrimination and bring in equal pay. This section is more important for the people in rural Ireland, where jobs are not plentiful, than for those living in the cities. If a woman is in a secure job and knows that alternative employment is hard to come by, she would be very wary of claiming equal pay when she read this section with the words "and may" instead of "and will". Is there any hope of the Minister changing those words?
Just for the record, the whole point of the Bill is that there are heavy penalties against an employer who would seek to ignore his obligations under the Act. These are not light penalties. There is a fine of £100 on summary conviction and £1,000 on endictment in respect of each worker who may have been dismissed. These are very heavy penalties and their effect will be such that there will be very few attempts by employers to ignore their obligations under the Act.
We have been over this before, but for the record Deputy Dowling's Committee Stage amendment provided for compulsory reinstatement. On the Report Stage he dropped that element of compulsory reinstatement because he recognised the constitutional difficulties. It is not open to any Deputy to introduce an amendment which would have a compulsory element. I have told Deputies that I will have this whole area re-examined in the unfair dismissals legislation. I hope that at that stage we will be able to advance this, but there are these difficulties in framing legislation. They will still exist when I am framing the unfair dismissals legislation, but we can give it a more through examination and see whether any advance can be made in regard to these constitutional issues.
This legislation which we are now discussing will not come into effect until December, 1975, and I have undertaken that the unfair dismissals legislation will have been in operation long before that time—it is hoped, at the earliest possible date. I bring these facts to the notice of the House for the sake of the record and I ask that these amendments be accepted.
In relation to reinstatement, if this aspect was dropped and it was written into the Bill that a person who makes an equal pay claim cannot be dismissed until such time as the claim is decided, that would protect the person who makes a claim and it would mean that a person would be able to retain her employment.
That would bring in a problem similar to that in regard to compulsory reinstatement.
This still means that a person is at the mercy of her employer.
We have provided full security for the employee when one considers the penalties that are directed against the employer who may wish to disobey the provisions of the Act.
I cannot allow further discussion. I thought the Deputy wanted to ask some questions and I was about to facilitate him.
In relation to the fines to be imposed, they are no compensation for job loss. The job loss is the big factor.
That is not a question.
It is a question of comparing job loss to the fines. The Minister has indicated that the fines will prevent——
The fines are directed towards ensuring that there will not be job loss.
They will not prevent it.
Will the Minister have the situation examined in this respect before he prepares the new legislation?
I undertake to have the whole area re-examined before this Bill comes into operation.
When the Minister is carrying out this legislative review, will he look also at section 11 of this Bill whereby men can lose their jobs for seeking equal pay with women?
The Deputy is straying into a new area.
Men are affected by this amendment. It will not mean any safeguard to them.
They will have the same rights as all other employees.
Amendment agreed to.
I move amendment No. 4:
In page 7, lines 53, 56 and 58, "subparagraph" deleted and "paragraph" substituted.
This is merely a technical amendment to substitute "paragraph" for "subparagraph".
Amendment agreed to.
I move amendment No. 5:
In page 8, line 8, before "A complaint" the words "Save only where no reasonable cause can be shown" inserted.
In the Seanad my attention was drawn to the fact that a woman dismissed because of equal pay might not be in a position to submit her case within the time limit provided, for reasons of illness or absence abroad or any other such reason. This amendment seeks to deal with that possible situation by removing the time limit where reasonable cause can be shown.
This is a reasonable amendment which will broaden the section and leave it open for a person to make a claim at a later time where reasonable cause can be shown.
To whom will the final appeal be? Can a person go to the Supreme Court under ordinary civil law?
That possibility is open to anyone.
Amendment agreed to.
Amendments reported and agreed to.