That the failure of the Government to take care, as it is obliged to do under Article 7 of Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, that the provisions adopted pursuant to that Directive, together with the relevant provisions already in force, are brought to the attention of employees by all appropriate means, for example at their place of employment.
I welcome the opportunity to draw attention to the failure by the Government, and by the Minister for Labour in particular, to ensure compliance by this country with the provisions of Article 7 of the EEC Directive on equal pay. Senator M.D. Higgins has indicated that he would like to contribute to this debate and I shall shorten my contribution to facilitate him and also of course to give the Minister for Posts and Telegraphs an opportunity to reply on behalf of the Government. I thank him for being present to hear the case put forward.
The particular directive No. 75/117/EEC, on the approximation of the laws of the member states relating to the application of the principle of equal pay for men and women, provides in Article 7 as follows:
Member states shall take care that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force, are brought to the attention of employees by all appropriate means, for example at their place of employment.
This directive was passed on 10th February 1975 and allowed a year for its implementation, so it is fully in force since last February. It places a specific duty on the Government to draw attention of employees to the provisions of the directive itself and also to the national provision adopted by us as a member state. In our case that is the Anti-discrimination (Pay) Act 1974, which became law on 31st December 1975.
Not only is there a duty under this directive imposed on the Irish Government but I would submit there is also a clear duty imposed under the Constitution. That duty is imposed by the wording of Article 40, section 3, subsections 1 and 2. Subsection 1 provides:
the State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen
and subsection 2 goes on:
the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.
It is now a right of every citizen in this country to be paid on a non-discriminatory basis in employment for like work. It is a right which has been further identified and promoted by the European Court in a case on which judgment was given on 8th April last, the Defreene case as it is called. In that case the European Court made it clear that it is a principle of European Community law, a fundamental principle, that there be equal pay for equal work; that this is a principle which cannot be derogated from by the member states, that it must be enforced and applied in the member states. Indeed the court made it clear that it was a basic principle of the European Community from 1962, although the judgment itself was not retrospective in its impact or effect.
So there is a clear duty on the Government arising both from the directive and from the wording of Article 40 of the Constitution, and identified specifically by the European Court in the Defreene case on which it gave judgment on 8th April. There is an obligation to defend and vindicate the rights of the citizen; to bring home to the citizens—and in this case we are talking about the female employees affected by the Anti-discrimination (Pay) Act of 1974—to bring home to them actively in their work places, in every way that it is possible and by all appropriate means, the provisions of the Act. This includes the fact that they have rights under it, rights which they should enforce and rights which the Government should actively strive to defend and vindicate. What have the Government been doing?
First of all, they tried to get a derogation from these rights by tabling an amending Bill and by trying to get authorisation from the Commission for such derogation. Obviously, that subject is outside the scope of the adjournment debate and I do not intend to go into the details of it. But the Government still have listed on the Order Paper of the other House today that amending Bill which purports to be a Bill amending the Irish Act implementing the Directive. I refer to today's Order Paper of the Dáil, dated 23rd June, 1976; the Order Paper refers to "No. 25, Anti-Discrimination Pay (Amendment) Bill, 1975, Second Stage (Resumed)". So, it could be ordered; it is still there. That is not actively promoting the rights to equal pay for equal work as provided in the Anti-Discrimination Pay Act, 1974, which came into effect on 31st December last. Nor does one get reassurance from the statement made by the Minister for Labour in the other House on 5th May, 1976 in relation to this question. Speaking on behalf of the Government he made a statement in the lower House—what I would regard as an ambiguous, confused and muddled statement—about whether this Act which is law since 31st December last is really part of our law and is going to be enforced by the Government. He began—I quote from the Report of 5th May, column 687—by saying:
When the matter of the Anti-Discrimination Pay (Amendment) Bill, 1975 was raised on the Order of Business on 28th April, I undertook to make a statement to the House on the Government's intentions in relation to that amending Bill, after we had received a formal communication from the Commission in Brussels on the limited derogation provided for in the proposed Anti-Discrimination (Pay) (Amendment) Bill from the EEC Directive on Equal Pay. That formal notification of the Commission's decision has been received by us and our limited derogation from the provision of the Equal Pay Directive has been rejected by the Commission.
Then he goes on to give the basis on which the derogation was sought, and when asked by various members of that House to clarify the position he eventually—in a peeved and frustrated voice, one senses—said, at column 691:
I thought I had made it clear but I want to emphasise it once more. If we are not proceeding with the terms of the amending Bill then the Act operates fully. I would have thought that was quite clear. I am sorry that Deputy Haughey finds my presentation ambiguous but I thought I had made that clear.
But, of course, it is not either action or inaction on the part of the Government in introducing and then not proceeding with the amending Bill that makes the other Act fully in force. It came into effect on 31st December, 1975, is, and has always been, in full effect since that time. The Government could not in fact derogate either under our own Constitution or under the express ruling of the European Court in the Defreene case from the provisions of that Act. There is now a fundamental right to equal pay: a right to be paid on a non-discriminatory basis. It is extremely disturbing that the Government are not promoting and vindicating the personal rights of the citizen, in particular the right of women of this country to be paid on a non-discriminatory basis. As a first step the so-called and purported amending Bill should be removed from the Order Paper of the Dáil.