Seanad Éireann debate -
Thursday, 6 Jun 1974

Vol. 78 No. 7

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

Mr. Yeats

I move amendment No. 1:

In page 2, line 18, to delete "city town, or locality", and substitute "city, town, and the area within a 15 mile radius of the city or town".

This is following on the discussion we had on section 1 yesterday. The point I made was that the definition of a place which is set out in the section as including a city, town or locality was too vague. Nobody can really know what a locality is; it would have to be decided by the Labour Court or some other court in each individual case. There would never be any certainty because at no stage would you actually be able to set out the boundaries of a locality. All you could take would be individual cases relating to individual premises and say that this one is in the same locality as the other one and the next time the problem arose you would have precisely the same problem. You would never get any definitiveness about it. It would lead to a great deal of difficulty in a matter which is important because to this definition is tied the whole question of the equality of pay between different groups of workers. If there were two factories in a locality which happened to be associated with the same holding company the whole question of equal pay between those employed in each factory would arise. If one does not know what a locality is it makes life rather difficult.

My amendment suggests that while keeping the definition of a city or town, there should also be an area of 15 miles around each city or town. It is, perhaps, not entirely satisfactory in the sense that there might be areas where you would prefer to have a locality which is bigger than this or even smaller than this. At least it lends itself to consistency and definitiveness. The Minister was interested in Bray. It would bring Bray within the ambit of the locality of Dublin. In most cases I think it would be satisfactory enough. Certainly it would be more satisfactory than the very vague definition set out in the Bill.

Mr. W. Ryan

I support the amendment.

An Cathaoirleach

I would remind Senators that they can only speak once since we are on Report Stage.

Minister for Labour (Mr. M. O'Leary)

This section defines a place as a city, town or locality. This definition was included by way of an amendment moved on Committee Stage in the Dáil. Its purpose was to remove any doubt regarding the definition of "place" and to indicate clearly the full scope of the provision.

The intention is that entitlement to equal pay would arise in respect of employment by the same employer in a particular city, town or locality. The difficulty regarding the amendment suggested by the Senator—the area within a 15-mile radius of the city— is that it would not have the full scope that we envisage by the use of the term "locality". Comprehended under "locality", the definition used in the section, is the idea of a pay region, one well understood by the Labour Court, by the employers or trade unions in any particular area. The reality of equal pay claim situations is that claims would be negotiated by both sides of industry. Both sides of industry would, of course, be well aware of pay areas and what exactly was intended in a particular area to be the catchment area for such locality. The setting of a mileage limit as suggested would not provide the flexibility of interpretation which is necessary in this matter. One could enter into finer debating points such as whether it was 15 miles as the crow flies, whether it was in the centre of the city or town and so on.

In fact what we wished to have included under this idea of locality was where you would have an industrial estate outside a town, where a suburb was really an integral part of the town or locality and where somebody might argue, if you had an arbitrary mileage limit, that in fact it was somehow outside this particular circle even though the area was understood by all to be within the area and even though all wage rates within the area had previously been negotiated as a unit. For that reason I would not be in a position to accept the amendment.

Mr. Yeats

The Minister today has given a much more elaborate and comprehensive explanation as to what precisely he means by "locality" than he gave us yesterday. While I am still worried about the vagueness of the term on the basis he has set out, that there are these particular pay districts known both to management and unions, now that he has said that this is what he has in mind, the matter becomes clearer and I am prepared to withdraw this amendment.

Amendment, by leave, withdrawn.

Mr. Yeats

I move amendment No. 2:

In page 4, line 42, after "may" to insert "if the employee consents".

This matter was raised by Senator Ryan yesterday and I think it is a matter of some importance. The present situation is that under section 7 (2) the Minister has the power to intervene in an equal pay situation where the woman concerned has not done anything herself. The section says:

either no dispute has arisen in relation thereto or it is not reasonable to expect the employee concerned to refer a dispute in relation to such a clause to an equal pay officer.

We have a situation, in other words, where the Minister feels that a particular woman is being paid less than she ought to be paid on grounds of sex, that she is for some reason unable or unwilling, or most likely is afraid, to bring the matter forward and get involved in what she might feel would be the controversy and possible difficulties that might arise. The Minister can, therefore, enter into this and refer the matter to the equal pay officer.

We would all agree in theory, as a matter of principle, that where an employer is paying a worker less than she is entitled to get the matter should be referred to the various procedures set out in this Bill. In principle one would agree with this and support such a decision by the Minister to intervene. However, many workers, particularly underpaid workers and perhaps also women workers who are not always as aggressive as men, are less inclined to get themselves involved even in ordinary trade union activity and certainly less inclined to get involved in anything which could involve them in disputes. We may regret this but it is a fact to which one must have regard. We have, therefore, the position that a worker might be most unwilling to have this matter raised at all. The question is, therefore, in such a case should one bring the whole matter into the realm of discussion and dispute with an equal pay officer and later the Labour Court in spite of this unwillingness of the employee, or should one, on the other hand, ask the employee to agree.

There is something to be said on each side but on the whole one ought to accept that if an employee does not wish one to intervene, even though in theoretical terms as well as in principle the employee might be wrong, nonetheless an individual worker has the right to refuse to consent to a proceeding of this kind. If a worker is unwilling to take an action herself and is unwilling that the Minister should take any action, it seems wrong that the Minister should in a sense go over her head and go ahead with the procedures under this section. It is not as if there is any need for the employee's consent to be published or anything of that kind. The employee does not need to take any action. The Minister ought to get some kind of private written consent from the employee before going ahead under this section. Otherwise, you are in the position that the Minister is intervening, potentially, against the wishes of the employee. If the employee agrees then there is no problem at all. If the employee does not agree and does not want the Minister to act then it seems quite wrong that the Minister should have the power to act. Therefore, we are proposing this amendment to insert the words "if the employee consents" in the subsection which would then read:

Where it appears to the Minister that an employer has failed to comply with an equal pay claim but that either no dispute has arisen in relation thereto or it is not reasonable to expect the employee concerned to refer a dispute in relation to such a clause to an equal pay officer, the matter may if the employee consents be referred to an equal pay officer...

and so on from there. I think it improves the subsection. I do not think it would really reduce in any practical way the powers of the Minister, powers which we all agree he should certainly have. It would eliminate the possibility that a particularly nervous or anxious worker might have her case thrown into controversy against her wish.

Mr. Browne

Would I be in order in asking the Minister a question? If a male worker leaves his job of his own accord, the labour exchange contacts the employer who says that he left of his own accord then he is automatically debarred for six weeks whereas the female does not come back ever. She has no right at all. I had a case a couple of years ago of a lady who left her employment after nine years' continuous service, with stamps, to look after her sick parents and for the simple reason that she was a female——

An Cathaoirleach

It is hard to see how this arises on this amendment. Perhaps the Senator would communicate privately with the Minister and I am sure he will accommodate him in regard to the matter.

Mr. M. O'Leary

Yes, I will. I undertake to get in touch with the Senator on the point he raises. It is not appropriate to this section but I will be in touch with the Senator.

Senator Yeats's amendment arises from the fears he expressed yesterday that I might take action under this section despite the fact that (a) the woman concerned did not wish such action to be taken and (b) that the woman might, as a result of my action, becomes involved in legal expenses. His amendment, therefore, suggests that any action to be undertaken by me should be only with the consent of the employee concerned. As I pointed out yesterday, there is discretion both on my part and on that of the equal pay officer acting on my behalf and I would, of course, have regard to the circumstances in each individual case and where any injury would be likely to arise to a woman no such action would be taken by me. I would point out that what we are attempting under this section is to act on behalf of the woman who is in the unorganised job, who is afraid to press forward the claim that she could make under the legislation, leaving it possible for me to act on her behalf where the circumstances warrant it and using full discretion in so acting. To accept the Senator's amendment would have the effect of preventing me from referring the case of a group of workers under this legislation if one or two took exception to action being taken even where the circumstances warranted that action should be taken.

In addition, the Senator earlier was very anxious to see that we fully adhered to the EEC directive on equal pay, where the State would have a supervisory function on the implementation of equal pay, and I believe that if I accepted his amendment it would certainly dilute the State's effectiveness in fulfilling our obligations under that directive. For these reasons, I find that the Senator's amendment would not make the legislation more effective as I am sure it is his wish that it should be.

Mr. Yeats

I am not even remotely convinced by the reference to the EEC directive. I do not think that this very minor change would in any way undermine the Minister's position with regard to the draft directive. I do not think the absence of supervision by the State would be affected by an amendment of this kind. However, I am more convinced by his point about a group of workers. I can see that if the Minister wanted to act on behalf of a group and if one or two people, for whatever reason, refused to agree and if this meant that no action could be taken for the rest of them then obviously this would be a highly undesirable situation.

I am not altogether clear about the meaning of his reference to the equal pay officer. After all, the equal pay officer acting for him will only proceed if it is not going to do the worker any harm. I may have a totally erroneous view of the provisions with regard to equal pay officers. I thought that the duty of an equal pay officer would be to look into a case and if someone was being paid a wage that was too low, on grounds of sex, he would have a duty to go straight ahead and make a decision that this was so, and which could be appealed to the Labour Court. I certainly would not like to think that an equal pay officer could look into things and decide "this woman is being paid too little but all the same she is a nervous kind and she does not want much done about it so I will not take any action". I would much prefer to feel that an equal pay officer has no power of judgment of his own in that sense of the word, that he has to find out whether equal pay is being operated and to say firmly if it is not and that that is the position. Therefore, I feel that under section 7 (2) once the Minister has referred the matter to an equal pay officer he ought to go straight ahead and not have any regard to the Minister or anyone else but find out what the facts are.

However, on the whole it seems that there could be arguments on both sides and because of the Minister's point about the group of workers who could be held up by one or two people who refuse to consent, I am withdrawing this amendment.

Amendment, by leave, withdrawn.

Mr. Yeats

I move amendment No. 3:

In page 5, to delete lines 29 and 30, and substitute "A party to a dispute determined by the Court under subsection (1) may, notwithstanding section 17 of the Industrial Relations Act, 1946, appeal to the judge of the Circuit Court in whose circuit the party lives or carries on business, as the case may be".

This arose from a discussion we had yesterday. I pointed out on Committee Stage that the Minister has provided a form of appeal which is almost identical with what I have in the amendment, under section 10 (5). Section 10 deals with the dismissal of a worker who has been held by the Labour Court to be dismissed from employment solely or mainly because she claimed equal pay from her former employer. The Labour Court decide as a matter or right that this dismissal was wrongful and instruct the employer to pay the worker the amount due. If the employer does not pay the amount due then he is brought to the District Court and may be convicted of an offence. From this direction of the Labour Court initially deciding that the dismissal was wrongful, the employer has an appeal to a judge of the Circuit Court.

In section 8 we again have a direction made by the Labour Court to the effect that certain wages ought to be paid to a worker or group of workers and the employer is directed to pay these wages. This is on all forms with section 10. In section 8 the employer is told by the Labour Court to pay wages and, indeed, arrears of wages to an employee. In section 10 the Labour Court tells the employer to pay arrears of remuneration to a worker who has been dismissed. But in section 10 there is an appeal to the ordinary courts while in section 8 there is no appeal except a very limited appeal in subsection (3) to the High Court on a point of law. For practical purposes, the employer is in the position that he has no appeal at all against the Labour Court on foot of the decision that they have made with regard to the amount of pay due to the workers. The Minister has provided an appeal in section 10 and it seems to me that it is only justice and consistent with the provisions in section 10 that the provisions should also be entered in section 8. I am, therefore, proposing that in section 8, instead of the very limited appeal to the High Court on a point of law, there should also be an appeal to the judge of the Circuit Court in whose circuit the party lives or carries on business, as the case may be. It would be an appeal in this case either by the employer or by the worker concerned. That is why I mention both of them.

Mr. M. O'Leary

Senator Yeats pointed out what he saw as a different mode of legal procedure as between section 8 and section 10. I made the point yesterday that the sections relate to two vastly different roles. In section 8 there is the appeal on a point of law and in section 10 an appeal to the Circuit Court on a point of fact. It relates to industrial relations in section 8 while in section 10 there may be other matters involved including, possibly, the question of the judicial function of the court and there is, therefore, an appeal on a point of fact.

Mainly, and I emphasise this, it has been the practice under industrial relations to designate the Labour Court as the final arbiter in industrial disputes. As a matter of policy I wish to continue this practice. That is why you only have the appeal on points of law in section 8. Even on points of law under section 8 there is considerable protection given to persons who may feel aggrieved by the determination of the Labour Court on equal pay matters. On a point of law it is conceivable that it could be the interpretation of the equal value concept itself as determined by the court. Mainly, it is on the basis of the different functions of both sections and primarily on the necessity, as I see it, of preserving the Labour Court as the final arbitrator in the area of industrial relations proper.

Mr. Yeats

The Minister does not appear to realise that this Bill is bringing about a very radical change in the functions and activities of the Labour Court. Until now the Labour Court have had very considerable activities to carry out in the field of industrial relations but until now they had been a voluntary court. If the Labour Court make a pay award, they say that in their opinion a group of workers should be paid certain wages and an employer can ignore that. It may involve him in a strike and other untoward consequences but there is no criminal law involved. Nobody is going to say to the employer that he will be brought before the District Court or Circuit Court and fined. An employer, just like a trade union, can completely ignore any decision of the Labour Court. It is purely voluntary.

This Bill will bring about a radical change, as far as equal pay is concerned, in the activities of the Labour Court. As far as equal pay is concerned it is no longer an ordinary industrial court as has been the case in the past. The situation now is that the Labour Court will set out, not as a recommendation but as a direction, what pay is to be given to workers. The employer must pay that; it is not a voluntary matter; it is not a recommendation; it is a direction to an employer to pay certain wages. If he refuses he can be found guilty of an offence. Section 8 (4) (b) states:

If, where an order is made by the Court under paragraph (a), the direction contained in the order is not carried out within two months from the date of the making of the order (or, where there is an appeal under subsection (3), within two months of the date of the order of the High Court on the appeal) the person to whom the direction is given shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100 and, in the case of a continuing offence, a further fine not exceeding £10 for every day during which the offence is continued.

This is not a case of the Labour Court acting as an ordinary court in industrial relations. There is a clear situation where a direction, not a recommendation, is given to an employer who commits a criminal offence making him liable to considerable fines in the event of there being a large group of workers involved and yet he has no appeal. If the Labour Court decide, on a false criterion—if the recommendation is not in order he has an appeal on a point of law—on the basic question of the amount of wages they fix, the employer has absolutely no redress at all.

If an employer wished to suggest, for example, that a second factory was not in the same locality, as defined in section 1, as the first factory, and the Labour Court held as a fact that it was, he would have no redress against that either. There is no element of law there. The matter has been left so vague that the Labour Court would be able to decide the facts for themselves and the employer has no appeal. That is unjust. I am reasonably confident that any employer who is not particularly keen on this legislation would be able to upset this in the Supreme Court. It is clearly unconstitutional.

One can argue about the Constitution indefinitely and no two people will agree until ultimately a decision has to be taken by the Supreme Court. It is the only way of getting a definite result. I think it is a very serious fault in this Bill that on an important matter of this kind there should be no appeal. There is no basic difference in principle between the situation under section 8 and section 10. In each case the matter in issue is that the Labour Court give the employer a direction to pay certain moneys to a worker. That is the basic result achieved in each case. There is no difference in principle that justifies the omission of an appeal from section 8 and the inclusion of an appeal in section 10.

Amendment put and declared lost.

Mr. Yeats

I move amendment No. 4:

In page 7, line 32, to delete "104" and substitute "156".

As I said yesterday, we have in this Bill the problem that while it is a general rule, particularly arising out of subsection (5) of section 8, that the limit on the amount of arrears of wages that can be awarded to a worker is three years, in one limited case the rule is different: it is two years. Under section 10 (1), where the Labour Court find that a woman was unjustly dismissed the amount of compensation payable is limited to 104 weeks' remuneration. This seems inconsistent.

If the employer is prosecuted for wrongfully dismissing a woman under section 9 the court are empowered to give her three years' arrears; equally, if an employer has been instructed by the Labour Court, in respect of a case where an employer was not prosecuted, to pay the maximum of two years' arrears in remuneration and this is disregarded by the employer and he is prosecuted for not paying this amount, the court can pay the worker up to three years. It would be very much in a worker's interests to persuade an employer not to pay and allow himself to be prosecuted thus getting herself an extra year's wages. I am suggesting that for two years, 104 weeks, she would be subject to 156 weeks or three years, which would then equalise in all parts of the Bill the amount of arrears of wages that the worker can get.

Mr. M. O'Leary

The section provides that where a woman is dismissed because she sought equal pay the Labour Court may by order direct the employer to pay to the woman by way of compensation for such a dismissal a sum up to 104 weeks' remuneration. The Senator proposes 156 weeks' remuneration in his amendment. It would appear that the Senator is chiefly concerned to get consistency with section 8 (5) which provides that a woman may be awarded up to three years' arrears of remuneration.

The two provisions are not strictly comparable. The three years in section 8 (5) refer to arrears of the difference between the pay a woman had been receiving and the extra money she would have been getting under an equal pay award. The 104 weeks in section 10 (1) refer to the full pay a woman would have been receiving if she had not been dismissed. Therefore, there is no inherent inconsistency in retaining 104 weeks in section 10 (1) (d) and three years in the longer period in the other case where in fact what is being sought is the difference.

Mr. Yeats

Would the Minister be able to say under section 10 (3) (a) what the limit would be and what the woman would get?

Mr. M. O'Leary

The period mentioned in the section—104 weeks.

An Cathaoirleach

I am sure the Senator and the Minister appreciate that we are on Report Stage. If it is desired to recommit this single amendment it might be more orderly.

Mr. Yeats

There seems to be some misunderstanding about this.

An Cathaoirleach

That is why I suggested it, because there seems to be a question of different readings. This is difficult to discuss on Report Stage.

Mr. Yeats

It will not keep us very long. If the House agrees to recommit——

An Cathaoirleach

It is possible to recommit the Bill in respect of amendment No. 4.

Mr. M. O'Leary

I had answered the Senator's question.

An Cathaoirleach

The position is that if the amendment is recommitted then it would be possible for both the Minister and the Senator to make more than one contribution towards the debate.

Mr. M. O'Leary

I am sorry, but I am rather pressed for time today.

An Cathaoirleach

It is a matter for the House. Senator Yeats, do you wish that it be recommitted?

Mr. Yeats

It is unfortunate that the Minister is giving an interpretation of his own of subsection (3) (a) of section 10 which seems to me to be totally erroneous. We have in subsection (3) (a) of section 10 a situation where an employer is being prosecuted for not paying the arrears on a dismissal that was set out by the Labour Court. It states in that subsection that:

... 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.

If the Minister will look at page 6, there is another subsection (3) (a), only this time it is subsection (3) (a) of section 9. It is absolutely identical from start to finish with the wording of this particular paragraph. In this instance it is where a woman is dismissed, the employer has been prosecuted for dismissing her and brought before the court and the court, in addition to any other punishment, may impose a fine not exceeding the amount which in the opinion of the court the plaintiff would be entitled to recover against the convicted employer in respect of such arrears of remuneration.

If I were to ask the Minister here what this meant, how much the employer would get out of this section, he could hardly say 104 weeks as set out in the section because it is not set out in the section—it is set out in the following section under a different heading, section 10. I would say that the sensible way of looking into that would be that the worker is entitled to three years remuneration in accordance with the general rules set out in section 8 (5). Certainly it cannot be 104 weeks because that does not arise anywhere in the Bill up to and including section 9. If it is three years in subsection (3) (a) of section 9, it clearly is also three years in subsection (3) (a) of section 10. These subsections are absolutely identical.

Mr. M. O'Leary

That is true. It is the Labour Court under section 10 and the civil court under section 9.

Mr. Yeats

They can give three years?

Mr. M. O'Leary

We are talking about different courts.

Mr. Yeats

Different courts?

Mr. M. O'Leary

I know the Senator is transferring this Report Stage into a Committee Stage and I am inclined to go along with him a little but I cannot enter into this debate all over again. The case is initiated in the civil court in section 9 and I have pointed out the situation in relation to section 10.

Mr. Yeats

It is not so initiated. It has nothing to do with a civil court. I am referring to subsection (3) (a). Section 9 provides that where a woman claims equal pay from her employer and afterwards she is dismissed:

.... subsequent to the making of the claim the employer dismisses the woman from her employment solely or mainly because she made the claim, the employer shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100 or on conviction on indictment to a fine not exceeding £1,000.

That is subsection (1) which relates to a criminal offence committed by the employer and he is charged in a criminal court. This is not a civil proceeding at all. He is charged in a criminal court and arising out of this criminal charge it is provided in subsection (3) (a) that the court may award three years, and the Minister concedes that it is three years' arrears of remuneration. In section 10 we have a similar position. Again, the employer is brought before the court for, in this case, not paying the correct arrears on grounds of dismissal and we had the same provision that the court may impose a fine not exceeding the amount which, in the opinion of the court, the plaintiff would have been entitled to recover, and so forth, in respect of such extra amount of remuneration. I do not think that any lawyer or any barrister or solicitor would have very much trouble in getting three years' arrears for an employee in these circumstances.

I have absolutely no doubt that three years is what she would be entitled to under either of these paragraphs on either page 6 or page 7, and that being so, it is totally inconsistent with the provision in paragraph (b) of subsection (1) of section 10 when the Labour Court can only give 104 weeks. There is complete discrepancy in the Bill and we have the position therefore, that if an employee is awarded the maximum of two years' back pay, if the employer does not pay it and he is brought into court and convicted, then she will get three years.

Mr. M. O'Leary

I think the Senator is confusing the sections. He is confusing section 8, which is a question of equal pay, with sections 9 and 10 which refer to dismissal.

Mr. Yeats

It does not say equal pay in subsection (5) of section 8. It seems to me to cover both equal pay and arrears of pay on dismissal. It does not say anything about equal; it says:

... to which he is entitled under this Act...

and that covers both.

An Cathaoirleach

Is the amendment being pressed?

Mr. Yeats

No, there is no great matter of principle involved; it is just bad drafting. I will withdraw it.

Amendment, by leave, withdrawn.

Mr. Yeats

I move amendment No. 5:

In page 7, lines 53, 56 and 58, to delete "subparagraph" and substitute "paragraph".

This is just a small matter which obviously arose from a misprint. I think the Minister agrees that I was right in that it should be "paragraph" and not "subparagraph" and I hope that this time I have worded the amendment correctly to achieve——

Mr. M. O'Leary

I accept the technical improvement in the Senator's amendment.

Amendment agreed to.

Mr. Yeats

I move amendment No. 6:

In page 8, line 8, to insert before "a complaint" the words "save only where no reasonable cause can be shown".

This is a matter which was raised yesterday by Senator Brosnan and it relates to section 10 (4) which states:

A complaint under this section shall be lodged not later than six months from the date of dismissal.

Mr. M. O'Leary

Would it assist the Senator if I accepted his amendment?

Amendment agreed to.

Bill, as amended, received for final consideration and passed.

The Seanad adjourned at 3.20 p.m.sine die.