Anti-Discrimination (Pay) Bill, 1974: Committee Stage.
SECTION 1.
I move amendment No. 1:
In subsection (1), line 18, to delete "a city, town or locality" and substitute "a city or town".
The reason for this amendment is that it seems to me that the phrase or definition here of "a locality" is much too vague. We know what a city is even where a town or village is unincorporated and has no specific boundaries; one can, at any rate, make a reasonable guess as to whether a particular factory is in a town or not. But as to precisely what a locality is, it would, I think, in many cases be impossible to say. The definition of a place is important because there are a number of cases where it comes into the Bill. For example, if one takes section 2, it says:
... it shall be a term of the contract under which a woman is employed in any place that she shall be entitled to the same rate of remuneration as a man ...
"In any place", of course, includes the words "in any locality" because of this definition. It is not merely a couple of factories, say, run by the same individual, in the direct sense of the word. You could, for example —and this arises particularly under the second subsection of the section —have a case where there were two totally different factories administered and run by totally different people who had no connection with each other except that they were both, for example, under the control of a holding company, yet the actual factories themselves could be really in connection with each other. But written into the terms of every contract of employment for two such factories is the rule that the rate of remuneration must be the same as for a man employed in the same locality. I cannot conceive how an employer in circumstances of this kind could know how far a locality stretched. It is not a term, in so far as I know, that has any legal meaning. I accept completely the aims of section 2 that these things should be written in as a legal term of the contract. Inevitably there will be, as a result of this, a certain amount of confusion and ambiguity, and I think one only adds to it by bringing in this non-legal phraseology "of a locality".
Before I go any further perhaps the Minister could simply say to us what general area he had in mind in different parts of the country for "locality". There must be some reasonable way of assessing this. I have thought about it and I cannot, on the face of it, see how an employer or indeed the Labour Court or any other court would really be able to lay down any specific rule as to what a locality was.
Originally there had been some criticism that the provisions of this section of the Bill were too restrictive. The definition of a place as a city, town or locality was brought in by way of amendment on the Committee Stage of the Bill in the Dáil, and the purpose was to remove any doubt regarding the definition of place and to make provision for an extension of the scope of this definition here.
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. I agree with the Senator that it is not amenable to restrict legal definition, but there is in section 8 recourse to the High Court for any legal interpretation of a clause needing interpretation. In industrial relations it is rather difficult to give full legal connotation to some of the terms used. Here our idea was to ensure that workers who were in the paying locality, that is, the area covered in industrial relations matters—by the catchment area, as Senator O'Higgins says—and in the same industrial relations and negotiating area, should come within the terms of any legal wage rates applying in the city or town. It would have been ludicrous if somebody working a mile outside a town was cut off from the provisions of this legislation. People who would find themselves in some difficulty of legal interpretation if that should arise —and it is unlikely to arise since the intent here is that it should have the ordinary applicability of industrial relations legislation—would have recourse to the High Court.
The Minister, in effect, has told us he does not know what a locality is. I am not sure about the appeal to the High Court. In section 8, subsection (3) it is on a point of law. I would have thought this was a point of fact rather than a point of law as to whether there is a particular locality. If the Labour Court decides it is a matter of fact that two factories are in the same locality, I am not at all sure that this would enable the employer or anybody else to appeal to the High Court on a point of law. It seems to be a matter of fact rather than of law. Even if there were an appeal to the High Court, this seems an extraordinarily expensive and cumbrous way of settling a simple point which one feels ought to be put into the Bill.
I accept completely the Minister's point that if you say merely city and town you could have a situation where the factory was one mile outside the town. One could add in a definition of ten or 15 miles outside a town, anything which would remove this very wide area of incomprehension from the Bill. I am doubtful whether it could get to the High Court. I accept that somebody might take a decision in each specific case as to what the situation was. It would be an expensive and cumbrous way of doing it, but perhaps it could be done.
What worries me is that in an area where many thousands of people are covered the wages of many thousands of women will be affected by this Bill. In this kind of situation it seems highly undesirable that there should be as wide an area as this of simple incomprehension. If the Minister would consider the matter between now and the Fourth Stage, either he or I could perhaps put down a further amendment to remove "locality" and put in some such term as "15 miles", "20 miles" or "100 miles"—I do not mind so long as it is clear. Then at least people would be able to work out what the situation was. As it stands it is altogether too vague.
I, too, am unhappy about the definition of the word "place" here. I envisage the situation of the woman who is working in the factory in the town, but I wonder what her situation would be under section 2, perhaps, in another county which would be bordering it, or another village or another parish. I would suggest to the Minister that, in addition to "city, town or place", he should put in "county, townland, parish" and other similar areas.
What is envisaged here is the paying locality and it would be a recognisable jurisdiction in industrial relations procedure. I accept that it is not capable of strict legal interpretation. Our idea is that it should be the one paying region. Whilst it might not be absolutely explicit and legal terminology it is quite clear what it would mean to any person involved in industrial relations. I think it gives the necessary flexibility for the situations I have outlined.
Arising out of what Senator Brosnan said, would the Minister consider agreeing to a change? On Report Stage could he make it "city, town or county"? It is a bit crude, but at least it is coherent and clear. People would know that if there were two factories in a particular county they would have to have the same level of wages. It seems to be a very simple way of dealing with the matter and I do not think it would cause any great problems.
I think the Minister by introducing the definition of a "place" at all was providing a certain amount of trouble for himself, because it seems to me that you have either got to extend the definition of "place" in the way which has been suggested or else you eliminate a definition altogether. One of the dangers of introducing a definition at all is that it must be exhaustive. As it stands at the moment, it seems to me that looking at it in one way it is creating more problems than it is solving. Consequently I think the Minister should accede to the amendments that have been put before him or else eliminate the definition of "place" altogether.
There has been a great deal of attention given to this point. I am satisfied that the provision meets the objective we set out to achieve, that there should be a reasonable spread of locality covered. With regard to Senator Yeats's suggestion, if we brought in any mile distance area at all it would be quite within the competence of an employer to site his factory or work place a quarter of a mile beyond that boundary and thus defeat the purpose of this legislation. It would be ludicrous, for example, to think that somebody working in Bray should be regarded as outside the city of Dublin for paying purposes. The same rates apply in both places. One cannot be explicit in industrial relations matters. The reality of the situation is the pay negotiation region of pay. That is what we have here. There is, as I said, this recourse to the courts in the unlikely event that there would be any appeal on a point of law.
All I can say to the Minister is that if he is going to end up in the High Court with this, knowing High Court judges and the literal way they tend to rule on anything, I think it is highly unlikely that any High Court judge would rule that Bray was in the county of Dublin. I think he would say it is in a different county. I do not think he will get Bray in on this. What the Minister is hoping is that all the places he would like to see included in a locality will ultimately be included. I do not think it will work that way. Employers are very ingenious people. While we certainly hope that a great many employers will accept this Bill and do their utmost to work it, I am afraid—and I am sure the Minister would agree—that there will be at least some employers who will endeavour to evade the provisions of this Bill. The more vaguenesses and difficulties of this kind you put in the Bill the greater the opportunity of evasion. If you put in a word like "locality", which means nothing and can be made to mean whatever anybody wants it to mean, and if you are going to end up in the High Court, you could get results the Minister would not like at all. I would suggest that he should seriously consider substituting "county". Bray might not then be made an area of Dublin, but at least we would know where we were. I think it would be much better. For example, if you put "county" in you will include Balbriggan and you certainly will not get Balbriggan into Dublin any other way.
The Senator raises interesting points but I can assure the Senator that we have given a great deal of attention to this matter and that certainly Bray would be an integral part of the Dublin paying region. If we bring in here excessive explicitness there is a possibility of evasion by employers. It would be our opinion that to any industrial relations tribunal what is intended in this provision would be quite clear. It has therefore the objective that we have set out to achieve in this legislation.
I fully appreciate the Minister's point of view because he is conversant with the parlance and the jargon of industrial relations, more so than Members of the House here. That is why this is causing us so much trouble. I think the difficulties which we find about this definition would also be found by any court, particularly the Supreme Court, who would be equally ignorant of the industrial language and terminology.
It seems to me that both the Senators on the opposite side and the Minister are agreed on what they want to achieve by this. The only question at issue, as I see it, is whether the definition which the Minister has now included in the Bill should be restricted in the manner in which Senator Yeats suggests in his amendment. Taking the Minister's description of the pay region as what is aimed to capture in the definition, it seems to me that if the definition were restricted in the manner in which Senator Yeats is suggesting in his amendment there are obvious dangers where the pay region is going to cross the boundaries of a town or a city. You have places on the outskirts of Dublin city—take, for example, the region running from Terenure to Tallaght or to Rathfarnham. At a particular point you come to the city boundary, but there is no great difference so far as pay and industrial relations are concerned as between a foot over the city boundary and a foot short of the city boundary. The same thing is going to arise in relation to towns. By accepting Senator Yeats's amendment we would be inviting discussion, trouble and complication as to whether we are talking about municipal towns, non-municipal towns and so on.
The Minister has taken the word "place", which is used subsequently in subsection (2). He has not tried to restrict it; he has tried to put in a guideline to show what is in his mind. He is not excluding anything. He is saying that it includes a city, a town and locality. I would regard that as a guideline. I would suggest that it is a guideline that could be accepted if the kind of difficulties that are envisaged should arise. There is a built-in way of dealing with it in the Bill in section 8. If that does not prove satisfactory I think there would be an obligation on the Minister or any Minister occupying the particular post that the present Minister occupies to come back to the House and seek amending legislation to cure the defect.
One point strikes me. Take a place like Shannon Airport where there is a very large industrial estate. Shannon Airport is not a town, a city or an urban area as generally understood although they have tried to get a statutory basis for a town. It would be very difficult to describe it other than by a fairly wide phrase such as locality or place. I am aware of three industrial estates established in the city of Limerick in which I live which you could not describe as anything but localities.
While appreciating the points put forward by the Opposition I think it is desirable that the phrase should be as wide as possible, not narrow. I think a narrow phrase such as "urban area" might defeat the purpose of the Bill altogether.
The review committee which I mentioned I would set up on the enactment of this legislation could consider this matter if there were defects such as Senators have pointed out. My officials and I think it is the appropriate terminology to use but I would certainly be influenced by anything that the review committee, which will observe how this Bill works, have to offer and I would certainly be swayed a great deal by any advice they would offer me.
The Minister will appreciate that it is at the early stages of the Bill that the difficulties will arise. The review committee is all very well. They can discuss all this, in due course bring in suggestions to the Minister and in due course the Minister could bring further legislation through this House and the other House. It is in the early stages—the first months when very large numbers of people are going to have their wages changed —that the problems will arise. It is a bit late in the day after all that has happened to remove any difficulties that there may be. I will withdraw this amendment. I will try and think between now and Report Stage what I might put down. I am a little tempted by my original suggestion of "city, town or 15 miles from the city or town" which I can assure the Minister will include Bray, which seems to be very close to his heart. I would ask the Minister to have a look at this before Report Stage. It seems to me to be an unnecessary fault in the Bill to have a vagueness of this kind.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In subsection (3), to delete "provision" wherever it appears and substitute "section".
Section 1 (2) states:
In this Act a reference to a subsection is to the subsection or the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.
I do not know what the provision is myself and certainly I never knew that a provision could have a subsection, so I am suggesting that, to make sense, where the word "provision" appears it should be replaced by "section". The subsection would then read quite clearly:
In this Act a reference to a subsection is to the subsection of the section in which the reference occurs unless it is indicated that reference to some other section is intended.
That makes sense to me, at any rate, because I never heard off a provision in an Act and certainly not one that had a subsection.
I should like to support Senator Yeats. There may be a very good reason for a "provision". rather than "section". Certainly to make life easier for everybody who is going to have to interpret this Bill or Act in the future it would be much simpler if it was merely "section" rather than "provision".
I will accept that. This is similar to what is contained in other legislation, but I have no objection to accepting what the Senator suggests.
Amendment agreed to.
Question proposed: "That section 1, as amended, stand part of the Bill."
I have one point to make on the section. The second definition is: "the ‘Court' means the ‘Labour Court'," the Court being a Court with a capital "C". I am not suggesting that this is lacking in clarity or anything of that kind, but, with all respect to the Parliamentary draftsman, it seems to me that it leads to entirely undesirable results. I would refer Senators, for example, to section 10, where we have a whole lot of references to the Court with a capital C referring therefore to the Labour Court. These occur right through subsection (1) and subsection (2). Then you get on to subsection (3) and you have a series of references to the court, with a small c, which in this case means the District Court, Circuit Court, High Court as the case may be. There are other sections in which the same situation arises. I am not suggesting that I know precisely how this could be remedied. I am not even urging very strongly that it should be remedied. However, I think that having a definition section ought to make things simpler instead of more complicated; and to have to read through a section like section 10 and to remember that the Court referred to in the first two subsections with a capital C is a totally different body to the court with a small c in the remainder of the section is bad draftsmanship.
It has been the custom to refer to the Labour Court with a large "C" and other courts with a small "c". You can see a certain bias in the minds of the draftsmen towards the courts of our system.
Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
I have a query on subsection (3) which says:
Nothing in this Act shall prevent an employer from paying to his employees who are employed on like work in the same place different rates af remuneration on grounds other than sex.
I am not at all clear what the Minister has in mind here. Perhaps he could let us know. It is not clear to me at all as it stands. Section 2 starts off saying that in all contracts from now on there should be an implied term that men and women would be paid the same. Then subsection (3) goes on to say that for reasons other than sex the employer can pay them differently. I should just like to know what the Minister has in mind.
This is to meet problems connected with service, that there should be this possibility open to the employer to pay different rates based on service.
I accept that it is probably a good idea that employers should be able to pay different rates on the basis of service. However, the section seems to me to be very broad. Would the Minister indicate whether it includes anything other than service? It just says "remuneration on grounds other than sex". Does it cover or would it allow an employer to pay varied forms of allowances provided they are not based on sex? I mentioned this on the Second Stage. I should like the Minister to expand a little bit further. Does it include anything other than service or is it just confined to service?
It does seem very wide. It would seem on the face of it, for example, that you authorise an employer to say that one worker is just a better one than another, that a male worker, say, is a more efficient worker and gets more done than a woman worker and that this is nothing to do with sex but he is paying him more because his output justifies it. I am thinking of the possibility that there may be individual employers who are not keen on this Bill, this Act as it will be, and who will be seeking means of evading their duty and I would be a little worried that a subsection like this might enable some of them to do so.
It seems to me that some such safer clause as is in subsection (3) is nearly essential in this legislation. The principle and the objective are set out in subsection (1), where it is made quite clear that on grounds of sex there can be no discrimination as regards pay. I cannot offhand think of cases where it might be necessary for an employer to differentiate except in such a case as the Minister has mentioned, that is the case of service. For example, in my profession employees' entitlements or minimum entitlements, put it that way, are fixed and depend on the number of years service. A person, whether a typist or a clerk or someone else, is entitled to a certain basic pay after so many years service and it varies then according to the number of years. It would seem to me that, if you deleted subsection (3) and left in the remainder of the section, then, whether a person was in my employ as a secretary for 30 years or for six months, she would have to be paid the same. I think logic tells us that there must be some such saver clause as this.
It is desirable that there should be some such section. Obviously it is not an easy one to draft, but it is very broad at the moment. I think, in fact, that it is open to the type of abuse that Senator Yeats was talking about. The history of equal pay has been that employers generally try to avoid implementing equal pay for a very obvious reason and I am afraid that this section will be used to defeat the very purpose of the Bill. We could, I suppose, go into rather ludicrous examples. You could discriminate on a physical feature other than sex if you wanted to—that it just happens that the male employees have bald heads and the females do not. That is perhaps an extreme example. What I am thinking of, particularly in the Irish context, is marriage allowances. If a marriage allowance is paid, it will mean, I think, that the marriage allowance would also have to be paid to a married woman. But in the Irish work situation, even though we have now removed the discrimination against the married woman staying on in her job, I think it will be some time before that really works through the society and women will still tend to leave their jobs, particularly after their first child is born. If they wanted to use that situation you could have the marriage rate again becoming the rate for the job, which we are now only on our way to eliminating in the Public Service. This is what I am concerned about in the drafting. I do not think this is the intention behind it at all, but I am concerned about this broad phrase "on grounds other than sex".
It is very interesting to me to note that at this time of the day, 3.45 p.m., we have eight Members present. Have you a quorum; a Chathaoirleach? There are two Coalition Members and we have five. I suggest, with all due respect to the Chair, that you insist on a quorum.
The Senator knows this is not the custom in the House. But he has the right to ask for a quorum if he so wishes.
I do so wish.
Notice taken that 12 Members were not present; House counted and 12 Members being present,
It was important that the possibility of payments of different rates of pay based on questions such as length of service, incremental scales and so on being taken into account should be there, where such differences in pay were not related to sex discrimination and were not based on grounds of sex. If an employer wishes to pay additional amounts to people engaged on light work the Bill would not hinder him provided that the payments are available to anyone who qualifies regardless of sex.
On the points Senator Owens and other Senators have raised, there is no doubt that it is not possible in any legislation to completely close all the statutory loopholes through which a person could attempt to escape obligations. I am satisfied that the machinery included in the Bill, the equal pay officers and the personnel involved in the policing of the terms of this Bill, together with its provisions, will be adequate to ensure that no differences on pay are based on sex, in other words that the provisions of the Bill are not defeated. However, I had to have a section in it that would permit an employer to pay different rates for such cases as I have outlined.
Question put and agreed to.
SECTION 3.
I move amendment No. 3:
In paragraph (c), line 21, to delete "on each person.".
My point in this is merely a drafting one. It seems to me that the words "on each person" are what is known as surplusage in legal drafting terms. It does not add to the section and, in fact, if anything it introduces a possible ambiguity. The section begins by saying:
Two persons shall be regarded as employed on like work—
(c) where the work performed by one is equal in value to that performed by the other in terms of the demands it makes on each person...
This seems to introduce possibly a new person altogether. If it is not a new person altogether, it is not necessary. If one wanted to be technical about it and if "on each person" should be there at all it should be "on each of such persons". In my view it should not be there at all. It is surplusage, unnecessary and only likely to introduce an ambiguity.
It strikes me that it should be "each of such persons" but I think Senator Ryan's point is——
Amendment agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."
I am a little worried about this amendment that the Minister brought in when introducing the Bill in the Dáil to include the words "in value" in paragraph (c). I am not sure at all what purpose he had in mind in bringing it in. It seems to me, offhand and subject to what he may say, that it takes away from the subsection because it originally read:
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.
The words "in value" bring in, I suppose, money. To me at any rate that is what "in value" means. It means the value in money terms. This has no relation that I can see to such matters as skill, physical or mental effort, responsibility and working conditions. These are a totally different matter from the money terms suggested by "in value". Its inclusion would surely suggest therefore that the work must be equal in value in money terms whereas originally it was a matter of skill, physical or mental effort, responsibility and working conditions, and so on. Would it not be open to an employer, for example, to say that because a woman had had maternity leave on a number of occasions in the past five years her work was not equal in value? Obviously, if skill, physical or mental effort, responsibility and working conditions are involved, then, they will be unaffected, but if we are talking about the money value of the person's work then I would be worried about the effect this might have.
It means equal in demands on the person. Our idea is to ensure that it has wide scope because what is all important in this legislation is the definition of the work, the kind of work, and so on. It follows on the ILO definition and it is broadly the kind of definition that would be desired by the representatives of work people in Ireland, and that is our intention.
I am completely in favour of what the Minister intends to do and what he thinks it means, but I wonder does it mean that? Is he sure that the courts, for example, would assess this phrase "in value" in this, shall we say, non-monetary sense. I completely agree with what he has in mind but I am by no means certain that that is what it would be held to mean.
I am pretty clear that it means what is written down here. It means what it says.
What worries me is that it would mean what it says.
The Senator has a subtle mind but we are happy enough with the definition here. It is in accordance with the ILO definition. The ILO definition is one that is designed to make sure that the scope of this definition would cover all the situations. It also means that job evaluation itself can be a factor.
Would the Minister think of putting another definition in the definition section? "Value" to mean such and such. I am serious about this.
I am sure the Senator is serious. I can assure Senator Yeats that we have looked at this and we think this is the way it should be done.
I agree with Senator Yeats. The word "value" in this context is a very vague abstraction. It becomes more difficult especially where it is put in here to define and when it is treated in conjunction with the words "skill, physical or mental effort, responsibility and working conditions". I submit that the section was better as it was when the word "value" was not in it. It was clearer. I think the Minister should consider whether the introduction of the word "value" would lead to much vexatious litigation and difficulties in trying to define what "value" meant in conjunction with the words it qualifies. Even the word "conditions" is rather vague. The lot together leads to much abstract vagueness, which could and should be avoided.
There are a few questions I should like to ask in regard to female and male agricultural workers. Are both entitled to equal pay?
When this Bill becomes law, a female agricultural worker in County Dublin will be entitled to the same rate as a male employee.
I should not like to see a female worker working on the top of the hills in my part of the country at 7 o'clock in the morning with a machine and remaining there till 8 o'clock at night. I do not think she would endure that too long. Another point I should like to raise is that we get £17 per week for a male worker and this is refused for a female worker. Will both be equal now?
Certainly the female agricultural worker will be entitled to the same rate as the male agricultural worker.
Any farmer who employed a male worker for the past 30 years got £17 but he was refused it for a female worker. Will that be altered now? Surely £17 each should be given to the man hiring them except you want to take it one way and not the other way. If I hire two men for a year I get £34 off my rates but if I hire two females I get nothing. A man with three daughters working on his farm gets nothing but a man with three sons gets £51 off his rates.
I will undertake with my colleague, the Minister for Agriculture and Fisheries, to see that the Senator's employment of two female agricultural workers will get him the same rates remission as two male agricultural workers.
Up to now I could not receive such a remission.
I take the Senator's point. I have been unaware of this situation.
Question put and agreed to.
Sections 4 and 5 agreed to.
NEW SECTION.
I move amendment No. 4:
Before section 6 to insert a new section as follows:
"(1) The Minister may by order require the appointment in each place of employment where more than fifteen men and fifteen women are employed of a committee to be known (and in this Act referred to) as an equal pay committee, which shall be representative of employer and employees.
(2) The method of appointment of an equal pay committee shall be decided in accordance with regulations made by the Minister.
(3) An equal pay committee shall carry out supervisory functions under this Act assigned to it by the Minister by regulations."
I am not suggesting that this amendment is definitive or all embracing or that it could not be improved. I am certain it could be improved. I put it down in order to set out the basic principle which I think is important. As the Minister knows, the Commission of the EEC have introduced a draft directive dealing with this matter of equal pay between men and women and this Bill, essentially is in accordance with the terms of the draft directive except for a few points. Article 6 of the draft directive lays down quite clearly that this process of the establishment of equal pay is to be supervised at the level of the undertaking. I take this to mean that in all the factories, offices and other places concerned there should be some kind of local and limited supervision at the level of the undertaking.
I am suggesting in this amendment that the Minister ought to provide for the setting up of equal pay committees in order that this supervision can be carried out. Obviously it would be unreasonable to try and set up committees of this kind in every tiny office with three or four people throughout the country. Equally there is no point setting up a committee if there are no women or no men, so I suggested as a compromise that where you have at least 30 workers, of whom 15 are men and 15 women, such a committee should be set up, which would be representative of the employer and the employees, equal numbers of men and women. I suggest that the Minister by regulation could provide in a fairly uncomplicated way for the appointment of these committees and also lay down in simple terms the supervisory functions that each should carry out.
I am proposing this for two reasons. First of all, I think it will improve the Bill. It will make the initial shock of this Bill much easier to carry through, a lot of contentious business in the Labour Court or elsewhere might be avoided and also the burden on the equal pay officers will be reduced. We have not yet come to section 6 but when we do I shall be asking the Minister how many officers he proposes to appoint—I presume the number will not be very large. I could not visualise hundreds or thousands of equal pay officers going up and down the country. Therefore committees of this kind would greatly ease the task of achieving equal pay in as non-controversial and as easy a way as possible.
The second reason I am proposing this amendment is this: it seems to me that, if the draft directive goes through the Council as it stands, the Minister or indeed the Irish Government would be in very serious trouble if they did not do something like this. After all, a directive, once it is accepted by the Council, is binding. This is not just a suggestion that the supervision should be at the level of the undertaking. It is an instruction which must be carried out. As the Minister knows better than I do, this matter has to come before the Council of Ministers at which he will of course be present and it may be that he proposes to object to this Article 6, I do not know. I would be sorry if he did. If he is accepting it and the other Ministers also accept it and it becomes part of the directive as ultimately passed into law, then it seems to me that we will be bound by it. Rather than having the Minister coming back to the Dáil and Seanad with a new Bill to deal with this very limited point it would seem sensible, therefore, to include it in this Bill as it goes through. I am interested to hear what the Minister has to say on this subject.
Senator Yeats's amendment suggests the formation of a committee in all firms employing more than 15 men and 15 women. I indicated on the Second Stage that it is my intention to set up an equal pay review committee representative of trade unions and employers. That committee will recommend to me, in the light of the experience gained, the steps necessary to correct any deficiencies that might appear in the area of equal pay.
I have also power under section 7 (2) to refer equal pay cases directly to the equal pay officer where no dispute exists or where it is not reasonable to expect the woman concerned to refer her case to the officer. Taking these two items in conjunction, the committee I will establish and the provision under section 7 (2), these will meet the requirements of the argument mentioned by the Senator. There is also the possibility that the type of committee mentioned in the amendment might not be very active and might not be desirable from an organised working point of view, from the point of view of trade unions. I am satisfied that we have sufficient legislative material in this Bill to comply with the items of the article mentioned by the Senator.
Taking the Minister's second point first, I take it that he will hardly suggest that he, as Minister for Labour, be classified at the level of the undertaking. I think the power given to him in section 7 to intervene in this manner could not possibly be held to comply in any way, either directly or indirectly, with the provisions of the draft directive. He is clearly way above the level of the undertaking.
I am happier with his point about the trade union review committee. He will have to accept that if this directive goes through in its present form there will be a clear and definite obligation on us to supervise this matter at the level of the undertaking. I am not enamoured with the idea that these committees should be set up by the Minister. I simply put it in my amendment because I felt the matter ought to be put down in some way. It is a cumbersome way of doing it. It would be better if it could be done in a more informal way by a body like the trade union body. I am quite happy to withdraw my amendment but I would urge the Minister to be careful with regard to this legislation in his contact with the trade unions. I have already mentioned that one can expect that some employers will be less enthusiastic about equal pay. The Minister will have to understand quite clearly and take it into account also that some trade unions will be more than unenthusiastic about equal pay.
There are many exceptions but some trade unions over the years have done less than nothing to achieve equal pay while others have resisted it. When it comes to the related matter of giving access to well paid work to women, a number of trade unions have been extremely hostile towards such a suggestion I will not mention the cases concerned because I would be ruled out of order by the Chair but the Minister knows them better than I do. I urge that when he comes to matters such as supervision at the level of the undertaking the Minister should not depend entirely on trade unions. He should at all times keep the mental reservation in his mind that he need not necessarily expect the enthusiastic co-operation of all unions. However, I am prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed: "That section 6 stand part of the Bill."
I should like to ask the Minister could he in approximate terms tell us how many equal pay officers he proposes to appoint?
Could the Minister use his good offices with the Minister for the Public Service so that when he is advertising the positions of equal pay officers he would ensure that the job is open to both men and women and that equal pay will apply?
Those requests will be honoured.
I asked the Minister how many he will appoint.
I recall that. The number has not been decided but we might begin with the apostolic 12.
I am sorry I did not ask this earlier because it seems to me that if there are to be 12 or thereabouts equal pay officers to deal with the very large number of places in the country where men and women work this question of some kind of supervision at the level of undertaking becomes of far greater importance. I did not think there would be thousands of these but I thought there would be more than 12. It seems clear that, if there are only 12 and there are thousands and thousands of women workers involved, some other process of supervision other than these 12 paid employees will be needed. The Minister should think very seriously about this. He is running a very serious risk of losing the whole benefit of this Bill. Many countries in the EEC and outside it have legislation dealing with equal pay. We all know how little effect it has had. The Minister should not rely on these equal pay officers. He must also have some other kind of supervision.
We do not have any set figure. I mentioned 12 but the committee I mentioned earlier would advise me as regards an adequate number. I was thinking initially of 12.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
Subsection (2) of section 7 is where the Minister has power to intervene in a dispute with regard to equal pay. He is given power here to intervene where "an employer has failed to comply with an equal pay clause 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".
I am not quite clear what precisely the Minister means by that. It is a little worrying. It would suggest that all the precautions and the provisions laid down in this Bill still leave us with a situation that the Minister feels that workers would be afraid to bring a case. It raises in more cogent terms the question of dismissals which will come up later. Accepting what is intended I should like to ask the Minister about workers' costs. The great difficulty in a matter of this kind, where you are dealing with employers who are inevitably much better off than the workers concerned, is this. When the matter comes before a court, even as far as the High Court— in certain cases the Supreme Court— the problem the workers would face is that in many cases they would not wish to press a matter of this kind because of the question of costs. The Minister told the Dáil that once he had intervened under subsection (2) of section 7 it might be possible for him to pay the costs. I cannot see that because the last two lines say quite clearly: "Once he has intervened and the matter has been referred to the equal pay officer by the Minister it shall thereupon be dealt with as if it were a reference under subsection (1) of a dispute by an employee". We are back to the situation as if an employee had brought the case himself. I am not at all clear that this subsection gives the Minister power to pay the employee's costs. Perhaps he could enlighten us.
Before the Minister clears that point I should just like to point out that we are envisaging here a situation where it is not reasonable to expect the employee concerned to refer the dispute in relation to such a clause to an equal pay officer. The employee is reluctant, for some reason or another, and maybe he has good reasons. In any event, he has some reason. Nevertheless this envisages the Minister coming in and forcing him to bring it before an equal pay officer. In other words, forcing him to do something which he does not want to do. In some cases it may be that he has not the initiative or the courage and he may be happy to have the Minister step in and do it for him. There may be reasons where he does not want to. This seems to be a situation where the Minister may force him to start a row, as it were, in which he does not want to be involved. There are other situations here in the Bill where the Minister may step in or certain action may be taken with the consent of the employee concerned. The consent of the employee concerned does not seem to be necessary in this case. To me it seems it is something for which there should be provision.
Unhappily it is true that we need such a section in this legislation because it may happen that cases would occur where the employee, for reasons best known to herself, may not wish to claim her rights under this legislation. It is to meet that situation that we have this provision in the Bill whereby the equal pay officer would have this possible role.
A similar provision operates in the British legislation. We think it a necessary element in this legislation. The costs of course of any litigation would be a matter for the courts themselves to award. The initial investigation of such a case, of course, would be for the Labour Court, but on any point of law costs would be a matter for the courts themselves to award. This right is a necessary one, we think. Of course, there would be a good deal of discussion on the part of the equal pay officer. Obviously in the situation outlined in this section each case here would have to be treated individually. I have referred to the need for proper training to be given to these officers. Their job simply is to see that this legislation we are passing will be implemented as widely as possible throughout the country.
That is not quite the point I was raising. I accept, of course, that in any court proceedings it is a matter for the court to say who pays the costs. What one would like to see is this: that if under subsection (2), of section 7, the Minister intervenes and starts proceedings on behalf of a worker who may well not wish him to do so, under those circumstances, if the court at any stage says the worker must pay costs, the Minister should meet those costs. I am sure he would be willing to do this but I want to know if he has the power to do this.
It is only the party to the dispute can go to the court on a point of law.
I accept that. Put it this way. The Minister wants, obviously, subsection (2) to be effective. I take it he does not therefore envisage a situation where he starts the ball rolling. He gets to the equal pay officer and perhaps to the Labour Court. Then the worker has a good point of law. The Minister at this stage says: "Over to you, boys. This is a mattter for the party. It has nothing to do with me anymore." Surely, under these circumstances the worker should have the same rights as a worker who initiated his own proceedings? The Minister therefore should be in a position to say to such a worker: "I think you have a good case. I suggest you should go to the High Court and if you are billed with costs I will pay them."
I think the point Senator Yeats has made and the answer the Minister has given reinforces the query I have made. That is, that in the first place an employee may not want to get involved in this. Now it appears that not only may he be reluctant to get involved in this but he may end up by having to pay costs.
I would say it would be very unlikely. I cannot see an equal pay officer coming in and imposing the tyranny of his good offices on a reluctant employee. I do not think that is likely to arise.
The classic answer to that is that we all accept the Minister would never do that. The present Minister would never do that but we may have a Minister in the future who might do something like that.
I agree there have been Ministers in the past who would have made such mistakes.
I can see that the Minister could not possibly give an undertaking that whenever a worker lost a case and had to pay costs the Minister would pay the costs. The world is full of unreasonable people. There will always be fellows who are never satisfied.
Senators will always be Senators.
There will be unreasonable people and there will be people who claim that they are not getting sufficient wages and go to the Supreme Court. There is really no reason why the taxpayer, through the Minister, should pay their costs.
This situation is rather different. This is a case where, under subsection (2) of section 7, the Minister has looked into a matter and decided that somebody has a good case and that it should be pressed. We all know that even the best cases do not always win in court. But if the Minister feels that a particular worker or section of workers have a good case, I think that they should be able to carry on as far as need be with the assurance that, when it comes to the pinch, if there are any costs involved the Minister would pay them. It is not simply a question of waiting until costs are levied on the workers. After all anyone who embarks on a course which can or may end up in court has to envisage the possibility that he may lose and may be mulcted for costs. What worries me is that workers might not press their rights simply because they felt that at some future date, maybe a year hence, they would have very large costs to pay. If the Minister has started something under subsection (2) he should say to all and sundry: "Well, all right. If at any time in the future you should by any chance have to meet costs, I will meet them".
There is not such a provision in any part of our legislation as yet and there is this committee examining this whole matter of free legal aid. They may come up with certain recommendations but it is not envisaged as such in this legislation here.
We are meeting this argument all along the line. The Minister says "This committee is sitting. They are all considering this. If things do not work out right we can always do something about it in the future." I would refer the Minister to section 13 of this Bill which lays down quite clearly:
This Act shall come into operation on the 31st day of December, 1975.
Why does he not wait until about July, 1975, tell all and sundry that the Bill is going to go through and that they can expect to meet this situation? All these things could be fixed and he could bring in a Bill which would mean something and which would not have this lacuna in it.
The Senator need not worry. The Bill brings solid advantages for working women in Ireland. I propose to appoint a review committee when the Bill is enacted here and that committee will prepare the ground to ensure that no employer will evade, the provisions of this Bill. I have made it clear that I have two or three other major pieces of legislation which will be effective long before the implementation date of this legislation. I have a great deal of work to do in this area. Every piece of legislation falls logically into place in that scheme I have outlined both here and in the other House.
Now, on the matter raised by the Senator, I think he has a point but he exaggerates its importance. The question of giving legal aid such as he has suggested is traditionally a matter for the court concerned, and to accept the amendment would interfere with any kind of court discretion in this matter. There is a committee sitting on the whole question of what legal aid should be available to litigants. Obviously, changes of the kind required by the Senator should ideally await the outcome of this committee which may be sitting quite a long time as it is a vast subject which necessitates a great deal of revision of existing ideas in this area.
Without going as far as Senator Yeats suggests, the matter might to a considerable extent be dealt with by introducing a clause or a few words to say that the matter may be referred by the Minister with the consent of the employee concerned. If she consents to it then it is not quite so unreasonable that she should have to bear costs. I think that at least she should be able to agree that this should be done. It may well be that the Minister and his Department want to make case law, as it were, about some particular point and will use an employee to do that against the employee's will and with the possibility that the employee will have to pay costs. The employee concerned may not want to get mixed up in this at all. It may be merely to prove some point that the Department want to prove.
Obviously there is a logical point in what the Senators have said but I think it does not bear any relationship to the reality of the situation that this Bill proposes to deal with. The subsection reads:
Where it appears to the Minister that an employer has failed to comply with an equal pay clause 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 be referred to an equal pay officer by the Minister and shall thereupon be dealt with as if it were a reference under subsection (1) of a dispute by an employee.
The matter "may" be referred. The Senators paint a very unlikely picture of myself, or whoever holds this job after me, desiring to have a test case on the back, so to speak, of a reluctant employee. I think this is unlikely by whoever holds this office either now or in the future.
Leaving aside the question of costs and who will have to pay them, I think that there are issues that arise under this subsection. I am entirely in favour of the general principle behind this subsection. I think basically it is a good subsection but it raises problems. The Minister told us that essentially the reason for the inclusion of this subsection, and in particular the reason for putting in the words "it is not reasonable to expect the employee concerned to refer a dispute" was that this envisages the situation where a particular employee or group of employees would be afraid to bring an action themselves. This raises a very delicate situation from the point of view of the employees. In view of this, I find it very difficult to follow the purpose served by the last line and a half of this subsection which read:
The matter may be referred to an equal pay officer by the Minister
and then goes on:
and shall thereupon be dealt with as if it were a reference under subsection (1) of a dispute by an employee.
In other words, no sooner has the Minister referred this matter over the fears, possibly justified, of the workers concerned to an equal pay officer than he washes his hands of it, and under this subsection it then becomes exactly as if it were an ordinary dispute voluntarily raised by a particular employee—the Minister essentially bows out.
It is provided all right in section 8 that various decisions are to be sent to the Minister because he originated it—he is kept informed—but in the last line of this subsection it is quite clearly stated that having referred it to the equal pay officer the Minister ceases to be a party to the thing, and a worker who is afraid to take an action on his own is brought into it by the Minister. The Minister under this subsection then ceases to be operative and the unfortunate worker or group of workers are left on their own. It seems to me to be an odd arrangement. I should like to ask the Minister what is the purpose of the last line and a half of this subsection. Would it not be a better subsection, perhaps, if there was a full stop in line 43 after the word "Minister" and leave out the business of washing his hands and getting out? I do not know how that adds to it. It definitely takes away from the strength of the subsection.
In support of what Senator Yeats and Senator Ryan have said, may I suggest to the Minister that the reluctant employee is in a similar position to a witness subpoened by the State in a criminal case? They are invariably very reluctant to go in and give evidence, but they must do so. In all cases where that is done the State pays their cost. Why should the reluctant employee whose situation is envisaged by this section—and which is a very necessary section—be jeopardised by the necessity to pay costs in a case like this? Would the Minister consider at a later stage dealing with the matter in the way suggested by Senator Yeats?
I should like to ask the Minister what precise purpose the last line and a half of the subsection serves—the words "and shall thereupon be dealt with as if it were a reference under subsection (1) to a dispute by an employee".
It means that after reference to the equal pay officer the case continues as though the employee had raised it himself or herself.
I am well aware of its meaning. I want to know why it is put there though. The Minister is given power to intervene in specific cases where the employee does not wish to, for whatever reason. This is obviously a case where an employee is in a very weak position as against an employer. She is afraid of what may happen if she tries to assert her rights. So the Minister is rightly given the power in this subsection to intervene, but having intervened it is specifically provided in the last line and a half of the subsection that after that he just ceases to be operative. He gets reports from people as to what is going on, but it specifically provides that from then on it is as if the dispute has been raised by the employee in the first place—the very employee who is afraid to take any action on her own. So the Minister pushes her in and says: "There you are now, girl, you are in the field. You are fighting your employer whether you want to or not. I have no more part in this. I am out now. You are on your own."
This provision is inserted in this legislation to help the employee in certain unhappy situations which undoubtedly exist in our industry. As I said, the intervention here by the equal pay officer is at his discretion in the existing situation. This discretion of course would be used properly, I have no doubt, by such trained officers. I do not see the dangers that the Senators see in this particular piece of legislation and I would not agree that our legislation should be so diluted that we would have to have provisions to meet the consensus of the people involved. If we said that this legislation only applies to those who are on the side of this legislation in Irish industry it would mean that we would be robbing legislation passed for a general situation of any real significance.
Question put and agreed to.
SECTION 8.
I move amendment No. 5:
In subsection (5), lines 22 and 23, to delete "In any proceedings brought by a person to recover arrears of remuneration to which he is entitled under this Act" and substitute "In any proceedings to recover arrears of remuneration to which a person is entitled under this Act."
This is purely a matter of semantics. Subsection (5) of section 8, lines 22 and 23, refers to "any proceedings brought by a person to recover arrears of remuneration to which he is entitled under this Act..."
This Bill, of course, is essentially about women. I know men are brought into it in section 11 just to cover the suppositions case that a man might be paid equal pay in relation to a woman. I do not think that the Minister any more than anybody else expects that section 11 will often, if ever, be used. Essentially we are dealing with claims by women to be given equal pay, yet, we are told in the Bill about proceedings brought by a person to have arrears of remuneration to which "he" is entitled. I accept, in accordance with the sometimes curious customs and traditions which have to be operated by the parliamentary draftsman, that once you have a person a person is a he and you cannot in a Bill talk about proceedings brought by a person to recover arrears of remunerations to which she is entitled. I do not think you can—if you can I think it would be the simplest way of dealing with it.
I suspect that the draftsman will say that you have to say "he". I have merely attempted to rewrite it in order to avoid having to use the word "he". I do not know whether I have succeeded in my amendment in retaining exactly the meaning of the subsection. If I have, I would suggest that the Minister might consider accepting this simply in order to avoid what looks rather odd procedure from the point of view of the man in the street—talking about "he" making a claim when it is obviously a woman we have in question.
I understand that "he" can mean "she" and "she" can mean "he". Whether the Senator's drafting arrangements here are necessary in that situation—I am informed that they are not necessary——
I am not suggesting the Minister's text is in any way unclear. I am well aware of the fact that in law "he" and "she" are both the same and that you normally do say "he" and this covers "she". I am not suggesting that it does not cover women. I am making a fairly semantic point that in the Bill dealing with equal pay for women it looks odd to talk about "he" making a claim for remuneration. I merely attempted to rewrite it in order to avoid having to use this term. It is not that it is lacking in clarity—the Minister's text is perfectly clear, but it just looks silly and that is why I suggest that it might be changed in order that it does not look silly.
The amendment seems to envisage a situation where the proceedings referred to in the subsection would be brought by someone other than the person who is seeking the arrears. Even in a case where a trade union would be supplying legal assistance to one of its members, in such circumstances the actual proceedings would be instituted in the name of the individual involved. I am not quite clear therefore what the amendment in the name of the Senator is designed to achieve.
It is not designed to achieve anything except to keep the word "he" out because it looks silly, but if my wording does not mean the same thing then obviously I will not press it. However, if there were any way of redrafting it to avoid that word "he" in a Bill which is entirely dealing with women, it would be better. I am not worried unduly about it. I will withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed: "That section 8 stand part of the Bill."
I said I regard the period of three years as rather short. This matter does and must arise out of a contractual obligation. As the Minister knows, one is entitled to bring an action arising out of a breach of contract for a period of six years under the Statute of Limitations. It is three years for tort and in the case of land it is a period of 12 years. In this particular situation you can have people who might be afraid, who might be ignorant of their rights or who might be unwilling for one reason or another to bring this action, or they may not have received the proper advice in time. I think it would be very unfair, if there were six years' arrears of remuneration due to them, that they should be debarred by this section from claiming it.
I should also like to know from the Minister whether this applies in the case of minors. When does the period of three years start? Take the case of a female going to work at the age of 16. Does the period of three years start at the age of 16 or 15 or does it start when they reach their majority as is the case in civil law? What is the position with regard to a person who may be out of the jurisdiction for some time through no fault of her own? Is that period of time to run against the claimant in this case? A claimant may also be prevented from bringing her claim by default or by fraud on the part of the employer. I should like to know from the Minister if there is any provision or what situation does he envisage in all these cases?
I would suggest that the period should be extended to six years rather than three. There should be a provision to protect people in the categories I have mentioned and other similar categories which I am sure will occur to the Minister himself and his advisers. I should also like to know what would be the position when the claimant dies—does the claim accrue to her next of kin or to her administrator? With regard to subsection (3) of section 8
A party to a dispute determined by the Court under subsection (1) may appeal to the High Court on a point of law.
I should like to know if in that case a party to a dispute determined by the court could appeal to the High Court on a point of law. I wonder if the Minister could tell me if the decision of the High Court can be appealed against.
On the general question raised by the Senator about six years being more appropriate, in fact ours would be a longer period than that applying elsewhere. There is the difficulty here that cases too far back would be rather difficult to process in this area of industrial relations. The employers and the trade unions are quite satisfied that the three year period is sufficient.
On the age question, the legislation does not have any age of commencement. It just sets down the equal pay definitions and the penalties for breaking them and the methods of enforcement.
As to the question of who would succeed in the case of death, I suppose the ordinary laws relating to estates would apply in such a case.
I want to raise a point raised by subsection (3) which provides:
A party to a dispute determined by the Court...
that is with capital "C", the Labour Court
under subsection (1) may appeal to the High Court on a point of law.
This means in simple terms that where the Labour Court has decided that a particular worker or a group of workers is entitled to a certain grade scale, the employer, or for that matter the workers, can appeal to any court, in this case the High Court, on a point of law but not on any kind of basic fact. The difficulty here is that this is not just an ordinary recommendation in an industrial dispute by the Labour Court, the kind of thing they do every day of the week which can be accepted by workers or by employers or rejected. This is an actual decision by the Labour Court that certain wages should be paid; and if an employer does not, pay his wages and the Labour Court at a later hearing finds that in fact he has not paid these, then the employer commits a criminal offence. This is a serious matter and yet we find that there is no appeal on the fact from the Labour Court.
I am not at all sure as to whether this would be held to be constitutional nor am I clear—leaving aside the question of the Constitution—as to whether it is just, nor does it seem to be consistent with the Minister's own Bill. We find in section 10 (5) that, where the Labour Court has made a decision that a certain person has been dismissed on the grounds that she raised this question of equal pay, the employer has a right of appeal on the facts as well as on the law. If there is an appeal in the one case I would have thought that there ought to be an appeal in the other. Apart from this inconsistency in the Bill, which I think ought to be limited, I would be very worried as to whether at some time in the future the Minister might not find that this absolutely vital section of this Bill could be dislodged altogether by a decision of the Supreme Court that it was unconstitutional.
I think there is good constitutional precedent for the type of case referred to. Where limited judicial decisions are exercised there could be no constitutional query raised about them. This holds in this case. The Labour Court is involved at present to fix statutory minimum wages in industries covered by joint labour committees and registered employment agreements. So I do not think there is any departure envisaged here in the functions of the Labour Court and there is, of course, the appeal on a point of law to the High Court.
Can the Minister explain why, he provides for an appeal in section 10 from a decision of the Labour Court in the case of wrongful dismissal and he does not provide for an appeal in the other case or under section 8 on the matter of fixing the rate of wages? It would seem that they are essentially of a piece. In each case there is a criminal offence involved in the same Bill and it would seem at least to be inconsistent.
If the Labour Court has decided that a certain worker or group of workers have been wrongly dismissed by an employer simply because they took this action under the Bill, if they are dismissed by the employer wrongly and this decision is come to by the Labour Court, then under subsection (5) of section 10 there is an appeal to a judge of the Circuit Court in whose circuit the employer carries on business. There is an appeal on facts, whereas under section 8, which we are now discussing, there is no such appeal. There is only an appeal to the High Court on a point of law; but the employer has no appeal on the facts from the decision, which can be very far ranging, of the Labour Court that a group of workers should be paid a certain wage and if the employer does not pay that wage then he commits a continuing criminal offence.
The Senator queries once more the possibility that the court may be infringing on a judicial function.
No. By section 8, the employer may find his interests very considerably damaged, may find himself in danger of committing a criminal offence without any right of appeal. That is under section 8. He faces a similar situation on this wrongful dismissal matter under section 10. Now under section 10, however, the Minister has provided him with a right of appeal to the Circuit Court for the area where he carries on business. In section 10, in other words, the Minister is providing him with a right of appeal, but under section 8, which can be even more far reaching from the point of view of an employer, there is no right of appeal except on this very limited matter of appeal to the High Court on a matter of law.
Is the Senator saying that the employer has no right of appeal in certain circumstances?
Under section 8 he has no right of appeal except to the High Court on a point of law. Under section 8, once the Labour Court decides that a group of workers, it might be 100 or more, are to be paid a certain wage, if the employer fails to pay that wage he commits a criminal offence. He can be fined a £100 and a further fine of £10 per day, and this presumably would be in respect of every single worker. It could be a very serious matter for him, but once this matter has been decided initially by the Labour Court the employer has absolutely no appear from this on the facts. All that can happen is, under subsection (3), that he can appeal to the High Court on a point of law. Once the Labour Court has made its decision the employer is out. He can do nothing unless the Labour Court has in some way over-reached its jurisdiction and he can raise some point of law. On the facts, he is out. It is a totally different situation under section 10. Where a similar matter has gone through the Labour Court deals with the matter of a dismissal, decides the dismissal was wrongful and should not have been made. Here again the employer is committing a criminal offence but he has in this case an appeal.
I should like to be on record as saying that I think Senator Yeats has raised a very valid point and I think there is a distinct possibility that sometime in the future when this is tested this section will be found to be unconstitutional.
The matter raised by Senator Yeats, of course, relates to two different functions. In section 8 we talk about proving the case for equal pay, and in the latter it is a question of the amount of cash involved. This accounts for the difference in procedure in either case.
From the point of view of the employer, the position is almost identical in each case. He is committing a criminal offence. He is declared, in effect, by the Labour Court to be committing a criminal offence, to be liable to fines and continuing fines day by day so long as he continues to commit this offence. It is different from the point of view of the worker. In one case it is a matter of wages and in the other case a matter of dismissal. From the point of view of the employer, in each case he is declared to be committing a criminal offence by the Labour Court, but in one case he has an appeal and in another case he has no appeal. It does not seem to me to be in any way consistent.
I think we have missed out on something here. Obviously I have, because I do not quite follow it. As I understood Senator Yeats, his argument was that under section 8 an employer would only have the right of appeal to the High Court under subsection (3) but he would not otherwise have the right to appeal.
I would have thought that subsection (1) (a) of section 8 gave the employer, equally with the employee, the right of appeal.
I raised this matter on the definition section, section 1. The Leader of the House has fallen into the trap set for him by the Minister and his draftsmen. He should advert to the fact that the court referred to in subsection (1) (a) has a capital "C". In the definition section that means the Labour Court. Wherever we see the word "court" with a small "c" that is the other court.
I know that. I understood that the Senator was saying——
I do not regard an appeal to the Labour Court as an appeal. I am thinking in legal terms. The Labour Court is not a court. It is called a court all right, but it is a kind of tribunal. When I speak about an appeal to a court, I mean a court as set up under the Constitution.
I took the Senator as drawing a distinction in relation to the Labour Court.
My "court" has a small c.
On the point I raised about the three-year period in which arrears of remuneration can be recovered, I would not agree with the Minister that three years is sufficient. I ask him again to consider a six-year period. Under the Agricultural Wages Act a male or female agricultural worker is entitled to sue for the arrears of wages. I cannot see how the Minister, his officials and the trade unions could be satisfied with a three-year period in the case of females, some of them minors, when they would be entitled to a six-year period of remuneration. I ask him to consider extending it to the six-year period which the person would be entitled to do if she was suing a contract, and after all this is a contractual obligation. The Minister did not answer my query about what would be the situation of minors and other people who, through no fault of their own, were unable to claim for arrears of remuneration for the three-year period or the six-year period that I propose.
I made the point earlier that the period has been considered to be adequate and to be sufficiently lengthy. The longer period suggested by Senator Brosnan is not thought to be necessary or desirable. We have received no representations of that kind for increasing the length of period for collection of arrears.
Senator Yeats queried the difference between section 8 and section 10. I should like to emphasise that only under section 10 can an employer appeal to the Circuit Court against an order of the Labour Court awarding compensation. In such a case the Circuit Court would only have regard to the level of compensation. Under section 10 it is only the level of compensation that would be appealed. The facts of the case would not be appealed. Under section 8 an appeal would be on a point of law, as in both cases the appeals are of a limited nature. I do not know if that satisfies the Senator on some of the points he raised, but certainly it is an explanation for the apparent difference in the procedures of section 10 as contrasted with section 8.
The Minister, in his last intervention, has not pointed out the differences; he has stressed the similarities. As he says, the direction concerned in section 10 is that the employer should pay the woman concerned a sum by way of compensation. This is precisely the type of thing he is doing in section 8. There the direction is that the employer should pay certain wages; under section 8 he has to pay her compensation which in fact is arrears of wages. Under section 10, the court may by order direct the employer to pay to the woman a sum by way of compensation equal to the remuneration she would have received to the date of the order of the court if she had not been dismissed. In other words, under section 8 she is to be paid the equal wages that the Labour Court decided she is due; under section 10 she is to be paid the wages she has lost by being wrongfully dismissed.
There does not seem to be anything to preclude the employer from appealing under section 8.
Yes. It is specifically stated in section 8 (3) that the only form of appeal to a court, that is to a "court" with a small c——
In subsection (4) (iv) page 6 a specific right of appeal is given to the plaintiff who is the employee, but that is without prejudice to the right of the employer or anyone else to appeal, as I read it.
That is a different matter. That is the amount of the fine. In other words, the Labour Court has decided that the wages paid to the workers by the employer were not adequate, that the women are entitled to equal pay at a certain level. The employer does not do this. The Labour Court meets again and decides that he has not done this and has committed a criminal offence. He is brought into court for this and is fined £100 and £10 a day; that is a criminal fine. He is also fined the amount that the court decides the worker would be due on foot of his non-payment of the wages fixed by the Labour Court. The employer can appeal against the specific amount of that fine; for example, he can say that he does not owe ten weeks' wages: "I only owe her nine weeks' wages." That is a different matter entirely. He cannot appeal against the basic all-important decision of the Labour Court, which is that he was in default in not paying the correct wages.
Why does the Senator say he cannot appeal?
No. He cannot appeal. The Labour Court is not a court. If it was an ordinary District Court, Circuit Court and so on, there would be certain basic rights of appeal. They are not in the Labour Court; they need to be provided. Under section 8 the Labour Court decides that the employer must pay a certain level of wages——
It is "court" with a small c in subsection (4) (c) (i).
Yes, but this is where the employer has been convicted. The courts with a small "c" only come into this Bill where the Labour Court has taken decisions; arising out of these, the employer is held to have committed a criminal offence and is hailed as a convicted criminal and fined before a court with a small "c". All this makes me feel more than ever that this definition of the capital "C" and the small "c" is frightfully confusing. He is convicted and fined. Then he has an appeal about the amount of the fine and so on. But the point I am making is that, once the basic decision has been taken by the Labour Court that a certain level of wages must be paid, everything else follows from that. He has no appeal against that at all except in a matter for law in the High Court.
It is on summary conviction that he is liable to the fine. The conviction is before the court with a small "c" and not before the Labour Court.
If the Labour Court decides that the wages must be paid, the next thing is the employer does not pay them. The Labour Court then considers the matter again under the section and they decide that he is in default and has not paid them. Then, where the Labour Court has made an order that the direction in the original order fixing the wages has not been carried out, subsection 4 (b) states quite clearly:
... the person to whom the direction is given shall be guilty of an offence and shall be liable on summary conviction to a fine...
Under this Bill the District Court has no other possibilities. The Labour Court fixes the wages; that is documented. They decided in another order that the employer has not paid them so he is brought into the District Court. What is his defence to be? He has no defence. He has no original appeal. The decision of the Labour Court is in black and white and the counsel or solicitor for the State has only to come into court with the documents. The orders were made as far as the district justice is concerned—and, mark you, if he decided on anything else his decision would certainly be overturned by the State. As far as the district justice is concerned, he is faced with the fact that the Labour Court has decided that the employer is in default and has committed this offence. He has absolutely no choice in the matter. It is all there in black and white. The employer cannot say that he did not really owe these people the amount, that they really were not entitled to equal pay, that it was all wrong, that the Labour Court has misunderstood the situation. He cannot say that. Under section 8 he is fixed with what they have decided and there is absolutely no way in which he can contest this. If the justice has acted in excess of jurisdiction or without jurisdiction or something of that kind —if he has done something wrong, signed the wrong document or something, all right, the employer can go to the High Court on the matter of law, but if he wants to contest the facts he has no way of doing it.
I do see the force of the Senator's argument, but I do not think the position is quite as black as I understood when I was listening to the Senator first. It seems to me that the procedure is such that the Senator is correct in saying that the Labour Court comes to a determination and when a person is given a direction he shall be guilty of an offence at that point, if you like, from the operations of the Labour Court. There is a statutory offence then, but that offence is not punishable by the Labour Court. It is not punishable until the defendant, let us call him that, has been brought in to the ordinary court, with a small "c", and is convicted before the ordinary court. It may be that a defence is going to be extremely difficult if all the technicalities, and so on, have been complied with. At least it is true to say that as a result of the "c", and is convicted before the Labour Court operation, he is only liable to that penalty provided he is found guilty and convicted in summary fashion before the ordinary court of the land. He has, as I see it, a right to contest in the ordinary courts of the land. It might be difficult but he has whatever defences may be open to him before the ordinary court. He must be convicted there. When he is convicted, then he is liable to the penalties laid down here; he is now before the ordinary court of the land and is entitled to appeal from that conviction.
But this is like the man who has not got a driving licence or who has not got insurance. He either has them or he has not got them. There is no great argument in going to court. If you do not have a licence you have not got it and that is all there is to it. This is the case the other way around. He is brought into court. The District Court is presented with a direction from the Labour Court which says that he is in default and that he did not pay the wages laid down by the Labour Court. Unless he can suggest that this direction was never made by the Labour Court—I do not think any court would hear him on that—unless he can suggest in some way that it was never made, he is then convicted. If he is raising a point of law about the adequacy in some way of the way in which the direction is made, then he has, under subsection (3), an appeal to the High Court on a point of law; but on the question of facts he has absolutely no leg to stand on. He just cannot go into the District Court and say that the Labour Court was wrong in deciding as it did. He cannot go anywhere and say that the Labour Court was wrong. He can argue with the Labour Court; but once they have taken their initial decision, then that is the end of it as far as the employer is concerned. He has no alternative; no court, no kind of hearing, can he have. He is fixed with the responsibility for paying this level of wages and if he does not pay them it is specifically stated in paragraph (b) that he shall be guilty of an offence, and so on, and shall be liable, on summary conviction, to fines. This all follows from the initial direction of the Labour Court from which he has no appeal.
I do not know if the Senator is aware that this is no departure from existing legislation in this area. There is no departure from section 17 of the Industrial Relations Act of 1946. That provides that there cannot be any appeal to a court of law arising from decisions of the Labour Court on matters covered by the Industrial Relations Act. This has not been tested or is not regarded as——
Does it impose a penalty?
There is no penalty imposed by the Labour Court.
I am not au fait with the precise section the Minister has quoted, but does it say that the employer is guilty of an offence if he does not carry out the decision?
Take another example—determinations by the Labour Court in regard to appeals against the recommendations of rights commissioners. These are binding and there is no appeal to the civil courts against these determinations. There is nothing unconstitutional in this legislation before us this evening.
What happens to the employer if he does not carry out these directions that the Minister is referring to?
These penalties are not regarded as coming within the area of exercising the judicial function.
In the cases the Minister has quoted, supposing the employer digs his heels in and says: "I will not do this", what happens to him? Is he guilty of a criminal offence?
These penalties are not connected with anything we put in under industrial relations.
That is the point. This is going over the border from one situation, where the Labour Court decides what the rights of employees and employers should be, and moving into a situation where people are committing a criminal offence. There is not only a summary offence but there is one section here which deals with an offence on indictment. We are moving into very high-powered law and very high-powered offences and a situation where the Labour Court can decide that a person has committed an offence. This, in effect, decides the facts and in so far as it can be referred to the ordinary court, all the ordinary court under this section can consider is whether an order has been made by the Labour Court and that the order has not been carried out within two months. That is all the court can consider. If they find that these two facts are proved to them then they must find the person guilty of the offence and impose a fine.
There is no appeal against the facts. Subsection (3) of section 8, in so far as it applies at all, is really more of a disadvantage than an advantage to the employer. It says he may appeal to the High Court but only on a point of law. If it were not there at all. Senator O'Higgins suggested that one could always appeal to the ordinary courts. That is true in the absence of this kind of section, but when a section refers to the appeal that will be permitted and says only on a point of law, that rules out any other kind of an appeal. It ends up in a rather dangerous situation where the Labour Court can find facts against which you cannot appeal and the situation then arises where an ordinary court must find that no offence was committed and heavy penalties may be incurred. It is a borderline case. It is a rather serious and dangerous situation.
We are satisfied that the power laid down for the court in the section is quite within the constitutional bounds.
There are two issues. The basic one is whether the Minister will lose section 8 altogether in some kind of a constitutional action. His advice is that it would be all right. Let us accept that that is right. Anyone who tries to make a definitive statement as to what the Supreme Court will do on a constitutional matter would be better off betting on horses. Let us assume that the Minister is right. Let us consider the basic matter of justice and forget about the Constitution. It seems to me that there ought to be an appeal for an employer. An employer is liable on summary conviction to a fine not exceeding £100 and a further fine not exceeding £10 a day. Supposing there were 100 workers involved, I presume each separate worker could well involve a separate offence. He could be liable, in an extreme case, to £10,000 and £1,000 a day while the offence continued. These are serious matters. It is not a casual thing, as the Minister seems to suggest, of a semi-criminal nature that we need not worry about.
Section 10, subsection (5), provides a perfectly satisfactory appeal to the Circuit Court judge on both the facts and the law. If I bring in on Report Stage an amendment to incorporate for practical purposes this same provision instead of the existing section 8, subsection (3), would the Minister consider accepting it? We would then have the situation that, where the Labour Court decides that a group of workers or a single worker is entitled to a certain wage, the employer or anybody else would have a right of appeal to the Circuit Court on both the facts and the law. Would the Minister object to that?
I am satisfied that the section as drafted does cover the points raised by the Senator.
It is all right for the Minister to say he is satisfied with it. I have asked him and would like his reply. It is an important point. What is his objection to giving a party to a dispute determined by the court the right to appeal to the Circuit Court on both the facts and the law? The Minister must have some specific reason for not wanting this. It may well be a very good reason.
I have answered that question.
As a lawyer I suppose I would prefer to go to senior and junior counsel to discuss this kind of situation, but during my stay in this House I learned something when we were talking in terms of criminal offences being created. I look back on statutory offences created by legislation that has gone through this House, even in comparatively recent years, where something is declared an offence by statute. For example, failing to give information to an inspector appointed under the Marts Bill, certain matters under the Forcible Entry Bill, even having a particular quantity of alcohol when it is blown into a bag under the traffic code. These are offences created by statute, but when it enters the realm of criminal law, I understood Senator Ryan to suggest here—and I am talking with all due deference to senior and junior counsel on this—that whatever is in the statute, the question of mens rea enters into it. Even though ostensibly, on the face of the statute, something is declared to be an offence, nevertheless there is a requirement on the part of the prosecution to prove mens rea, to prove the guilty intent. If a situation develops under subsection (4) of section 8, it seems on the face of it that Senators Ryan and Yeats are correct in saying that, on a determination of facts by the Labour Court, a determination that a direction has not been complied with for two months, ipso facto an offence is thereby committed. That seems to be so on the face of it. In order to impose any penalty the accused person must be brought before the ordinary courts of the land so that a summary conviction can be secured. In an effort to secure a summary conviction, if we are in the area of criminal law we are also in the area of mens rea. That requires to be proved. It is only on conviction where mens rea has been proved, the guilty intent has been proved, that the fines which are catered for here will come into operation. There is an appeal from that point on.
From a layman's point of view this is very interesting to me because the contributions made by these very learned gentlemen are very interesting. I am not at all surprised at the eloquence of both sides of the House. I can foresee these cases coming to court. They arrive in the Circuit Court and the High Court and the Supreme Court. May I remind the Chair that he is working without a quorum. There are some very eloquent gentlemen absent at this moment. They drift in and cast their vote without uttering one word on this important issue. Being the humble citizen I am——
I should like to be clear on this. The Senator is either drawing the attention of the House to the fact that there is no quorum or he is not. If he does wish formally to draw the House's attention, he should do so, and then the debate is suspended.
I have already done so.
Notice taken that 12 Members were not present; House counted, and 12 Members being present,
What Senator Brennan has said is really the kernel of my objection to this section: that there is an ambiguity, an uncertainty, a possibility that if this is tested it will be found to be unconstitutional. In other words, what Senator Brennan has said is quite correct. This may, when it is tested, be bandied around courts before it is finally determined that it is or is not unconstitutional. All we are suggesting is that the Minister, to remove any doubt, should make it quite clear that there is a right of appeal on the facts. Then there would be no problem or difficulty about the possibility of it being unconstitutional.
Arising out of what the Leader of the House has said— he has now gone—I want to express my view that I think he was under a misapprehension as to the proofs required to prove a statutory offence. He did mention mens rea. The fact of the matter is that mens rea is not a necessary ingredient to prove a statutory offence unless it is part of the offence, is part of the wording of the offence. In the case of while drunk you do not have to intend to drive the car while drunk to be convicted. The same would apply to most other offences. Even though others may have been misled he did not mislead me completely.
Far be it from me to compete with the legal luminaries or would be luminaries of the House, but I have looked at this matter carefully with my own advisers, and such advise as is available to us would suggest that these sections will not involve any constitutional difficulties.
We will put down an amendment on Report Stage.
Question put and agreed to.
SECTION 9.
I move amendment No. 6.
To delete subsection (2).
My objection to this subsection is that it is in conflict with a fundamental principle of the law and that is the principle that a person is innocent until he is proved guilty. As I am sure the Members of the House are aware. when somebody is accused of a crime the onus is on the prosecutor to prove that he is guilty. Until that is proved the person is presumed to be innocent. We have undoubtedly made some fine points of law in relation to some of the previous sections. This is not a fine point of law. It is a fundamental principle of the criminal law in this country and the Common Law countries generally. It is a very important principle that a person should not have to prove his innocence. That is what is being suggested in this subsection:
In a prosecution for an offence under this section the onus shall be on the employer to satisfy the court that the making of the claim was not the sole or principal reason for the dismissal...
That places the employer in the position that he has to prove that he was innocent. I do not have to enlarge on the position. If this kind of subsection were introduced into Bills generally it would upset the fundamental principle of the law and be a very serious matter. Consequently I think it is the duty of the Members of the Legislature to query, to say the least of it, any introduction of this kind, to ask whether it is really necessary and to ask the Minister to justify the introduction of a subsection such as this into a relatively mundane Bill. What I am asking is whether it is really necessary and asking the Minister to justify it.
Of course, it is much more convenient for the Department and most people concerned to say the employer was activated by resentment and so on and let him prove that he was not. It is a very simple approach to it. But it can be a very unfair approach and is in complete conflict with a fundamental principle of the law in this country.
This is not the first time that a Bill has been introduced in which the onus has been put on the accused person to prove that he is innocent. There have been exceptions in the past. I think they have always been challenged. I hope the Opposition of the time were alive to what was being suggested and were sufficiently conscious of the fundamental principles involved to challenge the particular section involved and to ask the Minister concerned to justify the exception in question. Sometimes there are good reasons why the onus is thrown on the person accused. One of the best known examples is where a person is found with stolen goods and the onus is thrown on him to show how and where he got them. The point I am trying to make is that any extension of this exception is undesirable. If it is shown to be unnecessary and merely introduced for the purpose of convenience, then it must be contested and must be avoided if at all possible.
In the particular situation which we have before us this section would not be weakened one bit by merely leaving out subsection (2). The court would consider it and do all the things which are mentioned in this section. I am perfectly certain that the situation could be dealt with just as effectively, without any injustice to the employee, without having this particular subsection. Consequently I suggest that it is undesirable, unnecessary and unjustified, particularly where it is interfering and in conflict with a fundamental principle of the law. It makes it possible for a female employee who has complained and subsequently been dismissed, but who has no reason at all for suspecting that the employer was motivated by the fact that she complained to bring what can be described as a vexatious or frivolous case and merely say. "I have no prima facie case at all but I am bringing the case. Now the employer has to stand up and prove he was not motivated by the fact that a complaint has been made.” In these circumstances I suggest that this subsection is quite unnecessary, that it does not in any way strengthen this section and that it is not justified in the circumstances. In view of the fact that it is such a serious departure from a fundamental principle the Minister could without any loss to this Bill simply delete it.
I take the points raised by the Senator. These are serious points. He is right in saying that this principle he mentions applies throughout our legal system. What we have sought here, in acceptance of the unequal relationship between employer and employee, is to ensure as much as possible that the employee would be protected in the rights conferred on her by this legislation. There is the difficulty that in practice workers might have difficulty in substantiating a case because they do not have particular documents that might be in the possession of the firm. It is the employer who takes the decision to dismiss the employee concerned. He has taken the action leading to the case being called. It is in such circumstances that he will be asked to show that this was not the principal cause.
The employer, who has the peculiar knowledge of the circumstances under his complete control, should be able to state the reasons. There is a similar provision in the Redundancy Payments Act, 1971, where it is assumed that an employee was dismissed by reason of redundancy unless the contrary is proved. I would submit that in the case of the employment contract and since this is purely limited to this point of dismissal, where the employer must simply unburden himself of the onus that it was because of the sex of the person concerned, that in such circumstances this is not an invasion of the rights of the individual.
I am never very keen on this business—I know all Ministers and Governments do it—of quoting other Acts in justification of things that are in Bills. After all, two wrongs do not make a right. In any event the Redundancy Payments Act the Minister quoted does not seem to me to be a point at all. That is a question of whether the worker is entitled to redundancy or not. As I understand it, it does not involve the employer in conviction for a criminal offence.
I can see why the Minister put this in. One must sympathise completely with the purpose behind it. As he says, it is quite clear that a female worker looking for her rights under this Bill who is dismissed by an employer is in a weak position. The employer, relatively speaking, is in an incomparably stronger position. I can quite understand and sympathise with the Minister's thoughts in incorporating this subsection. I really think he should pay heed to the very sensible point made by Senator Ryan that not only is this subsection contrary to a normal and highly desirable principle of law but is quite unnecessary.
Let us be realistic as to what in practice would happen. There is no difficult law involved. One has to visualise the situation where a worker comes to the court and says "I was wrongly dismissed". Once she has that, if the employer sits there and says nothing the court will hold in her favour. At this stage it is over to the employer. An employer who wants to defend himself must get up and say why he dismissed her. Otherwise he admits her case. It is a simple case where two people are involved—on the one hand the dismissed worker and on the other hand the employer. It is a matter of whether the court believes the worker or the employer.
Once a worker says, even without providing any evidence: "I made a claim for equal pay and I have now been dismissed as a result" that is all she needs to say. That is all she can say. She is not going to be in a position to give evidence as to what the employer had in mind. In so far as the court is concerned she has won her case unless the employer can persuade the court that in fact there was some other valid reason for dismissing her. Surely that is the basic commonsense approach to the thing?
Whether this subsection is left in or left out it will not make a minute difference to criminal proceedings under this section. They will go ahead exactly the same either way. It makes no difference whatever. It is absolutely clear that the court can only go on the basis that they will listen to what the employer has to say. They will believe him or disbelieve him and they are not going to be helped in the least by this subsection.
Like Senators Ryan and Yeats I also submit that this is a very serious deviation from the fundamental rule of law that the onus is on the complainant to prove the case. Only in very exceptional cases is that principle deviated from. The basis on which it is deviated from is that where the subject matter of the averment is peculiarly in the possession of the other party, in other words, where the prosecution cannot proceed because they are not in possession of the facts and the knowledge cannot be available to them, then the onus is cast on the defendant, or the accused in the criminal case, of discharging the onus of proof.
As pointed out by Senator Ryan, this situation here is not an exception to the general rule. It cannot be. There is no reason at all why the complainant here could not prove the case as a probability just as a plaintiff could in a civil action. She could go in and make her case and say that she was dismissed for certain reasons and then the onus would be cast immediately upon the defendant, in this case the employer, of justifying that. I cannot see any reason why the employee here could not go in and make a prima facie case, a case which the employer would have to answer, the same onus as would be on a plaintiff in an ordinary case.
The Minister did mention a while ago that there was a similar provision in the Redundancy Payments Act where the onus is cast on the employer to show that a dismissal was or was not—I do not know what exactly he said—due to redundancy. I understand the principle he mentioned. In that case it is different. A workman in that situation would not have available to him the peculiar facts and the knowledge, which he would have to aver to. In that case it would only be fair to cast the onus on the employer.
Here is a different situation where the would-be plaintiff, the female employee, is in a position to produce sufficient evidence to establish a prima facie case and to cast the onus on the employer. It is very convenient for the Department and the officials of the Department to put the onus on the employer. It saves them a lot of trouble investigating the different cases but again it is a dangerous departure from a very fundamental principle of law which should be guarded jealously. Recently this passing of the onus on to the other side has become rather popular. We have it in the Food Standards Bill as well. Section 6 (1) reads:
Where it is proved in any prosecution for an offence under this Act that a person manufactured, prepared, imported, exported, transported or stored food, it shall be presumed, until the contrary is proved, that the food was intended for sale for human consumption.
This is casting the onus on the party to be charged to prove his own innocence. I do not think it is necessary in this case. It is necessary in cases like that mentioned by Senator Ryan where you have stolen goods found in the possession of a person. It was necessary, although the present Government did not think so, in the Offences Against the State Act where it was impossible in a certain situation to prove whether or not a person was a member of any given society and what the State was entitled to do, in that case, and rightly so, was to establish a prima facie case and the onus was then transferred on the defendant to disprove it. These are cases where it may be justified. But there is a principle involved here and I do not think that the Minister is justified in deviating from that principle.
The Senator has raised important points. In the circumstances outlined, where a dismissal has taken place and a person has lost her job, I believe that this is a bearable incursion into this principle mentioned by Senators and that the onus should pass to the employer in such a case if he has taken the decision which led to this person's dismissal. I would not agree that all the facts would be in the possession of the person dismissed. That person would have left the firm's employment. Certain records attaching to the dismissal would not be in her possession but such records would be in the employer's possession. The employer obviously because of his position would be in full possession of all the facts of the case because of the status he enjoys in the employment contract itself. It is justifiable that the employer, at least where his action has led to the case, should be charged with this preliminary duty in such a case.
The Minister is justifying it on the basis of convenience more than anything else. I think it is not a good enough reason for doing something which is in conflict with a fundamental principle. I think the Minister would find, if he cared to inquire in the State Solicitor's Office or from the police that there are hundreds and thousands of files where the police are 99 per cent certain that they know who committed certain crimes but they do not have sufficient proof to prove that the person committed the crimes and the persons in Question can rely on the fact that they are innocent until they are proved guilty. In spite of the fact that the people concerned—the Attorney General at the time, the State Solicitor's Office and the police—know that there are hundreds of thousands of cases where people cannot be brought to justice because of this fundamental principle of law, nevertheless it has never been suggested, never been seriously contemplated by any Government in this country, that we should change this fundamental principle. When I say that I am talking about much more serious cases than this. I am talking about murders and other very serious offences. In spite of the fact that the people concerned know almost as a matter of certainty, that the person concerned is guilty, they just do not have sufficient proof to bring the person to justice.
I do not think this fundamental principle should be upset. The Minister is suggesting it now in a far less serious case, something that does not compare at all with the kind of crimes which I have in mind. The Minister is making a plea for it on the basis of convenience, on the basis that a woman in this kind of situation might not be able to bring her case as expeditiously as would be desirable and he is asking us to agree to do something which is against this fundamental principle for that reason. I understand the Minister at the moment is concerned with this Bill and that this is a way of ensuring that what he wants to do is done more expeditiously. Those of us who are a little more at arms length from the Bill have to point out that it is conflict with this principle, that the reasons given by him are not enough and that we must oppose it, particularly so when we are convinced that the section would be just as effective without that subsection.
A reasonable case has been made by Senator Yeats and Senator Ryan why the Minister should accept the suggestions. The Minister, by reason of the fact that he is a Minister with a Labour background, has little alternative but to throw the onus of proof on the employer because the Sword of Damocles is hanging over his head. Long may it remain so. I suggest that the Minister should forget about his affiliations for a short time while he considers what Senator Ryan has suggested to him.
The purpose of this legislation is to ensure that it extends as broadly as possible throughout Irish industry. I do not agree that the disappearance of this subsection would make no difference to the effectiveness of the Bill. I think it helps considerably the effectiveness of this Bill. It should be a relatively easy matter for the employer in any case brought to prove that the fact she had made a claim was not the sole or principal reason for dismissal. I understand the Senator's concern in this matter, but to suggest that behind this limited point made here is the particular case of the employment contract there stalks a vile conspiracy on the part of the State to create an about turn in matters of long standing in our legal system is not in accordance with the facts. It is simply required in this case to ensure that on the employer, who is in possession of all material facts in the case, should devolve the obligation of proving that the fact she made a claim was not the sole or principal reason for the dismissal. A person is already dismissed from work. All the documents, the records, belong to and remain in the employer's possession. It is not too much in such circumstances to ask the employer to explain that it was not the sole or principal reason and I think it adds to the effectiveness of this legislation that employers know they have this obligation.
The whole point of this legislation is that we seek to go as far as is statutorily possible to bring in this principle throughout our industry. However there are limits to how far we can go in some statutory clauses and provisions. I think this is one of the more ueful ones. This is a useful element in the legislation. Of course we shall never know the exact constitutionality of this provision until, it is contested in our courts. The possibility that Senators raise here is a possibility, but I think the contrary argument can have a certain validity also and that would hold until that point is reached. Certainly from the effectiveness of the legislation here it is a necessary ingredient.
I do not think anyone has suggested that this is unconstitutional. Rather sadly it has appeared so often in different Acts of the Oireachtas that it should be clear by now that no court is prepared to hold that a section of this kind is unconstitutional. While what I say on this is my personal opinion, it may not appeal wholly to my friend, Senator Eoin Ryan. I will say this to the Minister. I, personally, would be in favour of this subsection in spite of the problems that subsections like this raise. I would be in favour of its inclusion in the Bill if only I thought it was necessary. I think we are— certainly I am—entirely on the Minister's side, with his aim, with his feeling that the worker is weak, that the employer is strong, that the worker has no way of proving why she was dismissed and only the employer can make this clear.
But I simply cannot understand how having subsection (2) in this section will help the worker or in any way damage the employer. Of course the employer has the records. The employer knows precisely why he dismissed the worker concerned, but that is exactly what he will have to say to the court whether or not this subsection is in the Bill. The worker will bring an action saying that she was wrongfully dismissed, that she successfully claimed equal pay and, that after that she was dismissed. She tells the court that in her opinion the reason for her dismissal was because she took this action on the equal pay issue. The court will then turn to the employer and say "Well, all right, what is your side of the case?" and it will then be a matter for the employer. If he does not want to produce his evidence, all right. Then the court inevitably must find against him. If he does produce evidence and convinces the court, all right. But I cannot see how subsection (2) will affect the proceedings one way or the other. You will have a basic conflict between two people: one who says she was wrongfully dismissed and one who says she was not. The court will listen to what both have to say, to whatever evidence both of them, and in particular the employer, can bring. I cannot see that any time in the next 20 years will it ever be necessary for this subsection to be used in court proceedings.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 22; Níl, 15.
Tá
- Barrett, Jack.
- Butler, Pierce.
- Deasy, Austin.
- Farrelly, Denis.
- Halligan, Brendan.
- Harte, John.
- Higgins, Michael D.
- Iveagh, The Earl of
- Kerrigan, Patrick.
- Kilbride, Thomas.
- Lyons, Michael Dalgan.
- McAuliffe, Timothy.
- McCartin, John Joseph.
- Markey, Bernard.
- O'Brien, Andy.
- O'Brien, William.
- O'Toole, Patrick.
- Owens, Evelyn.
- Russell, George Edward.
- Sanfey, James W.
- Walsh, Mary.
- Whyte, Liam.
Níl
- Aylward, Bob.
- Brennan, John J.
- Brosnan, Seán.
- Browne, Patrick (Fad).
- Cowen, Bernard.
- Dolan, Séamus.
- Garrett, Jack.
- Hanafin, Des.
- Keegan, Seán.
- Killilea, Mark.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Ryan, Eoin.
- Ryan, William.
- Yeats, Michael B
Tellers: Tá, Senators Sanfey and Halligan; Níl, Senators W. Ryan and Garrett.
Question declared carried.
Amendment declared lost.
Section 9 agreed to.
SECTION 10.
I move amendment No. 7:
In subsection (1) (d), lines 31 and 32, to delete "but not in any such case more than 104 weeks' remuneration."
This is essentially a tidying up process. In section 8 (5) there is a general provision that:
In any proceedings brought by a person to recover arrears of remuneration to which he is entitled under this Act the person shall not be entitled to be awarded any payment by way of such arrears in respect of a time earlier than three years before the date on which the relevant dispute was referred under section 7 to an equal pay officer.
Three years for proceedings for remuneration, which would cover the full arrears of pay, on foot of a direction by the Labour Court with regard to equal pay would also cover remuneration lost as a result of wrongful dismissal under this Bill. Section 9 provides that, where the employer is convicted of an offence of not paying the wages laid down by the Labour Court, he may be fined, in addition to any other punishment, an amount not exceeding the amount which in the opinion of the court the workers would be entitled to recover against a convicted person in respect of such arrears of remuneration. Under the provisions of the previous section the plaintiff would be entitled to three years' arrears of pay.
In section 10 (1) (d) when the Labour Court consider the matter and decide that a woman has been wrongfully dismissed and is owed arrears of remuneration, they give her 104 weeks' remuneration—two years. I appreciate that when this Bill first came to the Dáil it was only six months. The Minister has amended this to two years; but it is still only two years as against the general provision of the Bill, which is three years. If after this decision by the Labour Court the employer still does not pay, under subsections (2) and (3) he can be convicted and fined for not paying these arrears of pay on foot of a wrongful dismissal. Subsection (3) (a) states:
... 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.
Going back to section 8 (5), this again is three years. In all cases, whether arising out of payments levied on the employer in the case of a conviction or otherwise, the employee is entitled to three years' arrears of pay. The only exception is where under subsection (1) of section 10, the Labour Court decide that her complaint of wrongful dismissal is well founded and may by order direct the employer to pay the woman a sum by way of compensation equal to the remuneration she would have received at the date of the order of the court if she had not been dismissed but not in any such case more than 104 weeks' remuneration. I am proposing to eliminate this 104 weeks in order to throw her back, as she is thrown back in every other case under this Bill, to the provisions of section 8 so that in all cases she will be entitled to three years' remuneration. I can see no point at all in her being entitled to three years in all cases except where the Labour Court are acting under section 10. The extraordinary position will arise under section 10 that the Labour Court will tell the employer to pay her a maximum of two years' pay. If the employer does not pay and is brought to court then the District Court can give her three years. It would therefore be vastly in her interest to see that the employer did not pay her.
This allows the Labour Court to direct an employer to pay to a woman who is dismissed because she sought equal pay compensation equal to the remuneration. This amendment seeks to relate the amount of remuneration to the date of the court's order without time limit. When there are complexities in a particular case it may delay somewhat the findings of the court. In the legislation, as drafted, it is thought that the 104 weeks is adequate.
I am totally unable to understand the Minister's point. Will he accept this as an accurate statement of what is in his Bill? In section 10 the Labour Court decides that a woman has been wrongfully dismissed. They give her a maximum of two years' back pay, pay she would have had if she had not been dismissed. Again, in section 10 of the Minister's Bill, if the employer does not pay and is dragged into the District Court to be convicted of an offence, the District Court can give her three years' pay. Is that what section 10 says? If it is what it says, why on earth does it say that?
One case is an advance to another stage. It is at civil court level.
Let us forget about courts. Visualise a woman worker who has been wrongfully dismissed. She is not interested in court. She is interested in why this happens. She is interested in getting as much back pay as she can. She was dismissed three or four years ago. She goes to the Labour Court and the Labour Court, for reasons which she neither knows nor cares, under section 10 says: "All we can give you is two years." All right. If the employer pays that, that is what she gets. If the employer does not pay it he has to be brought into the District Court. All of a sudden that woman finds: "This is great. I now have three years' pay." Is that what is in section 10?
It is unlikely the court would delay it for two years.
The Minister's Bill provides for three years for some reason. If he says two years is enough I can understand that, but he says in section 8 that three years is the figure. Three years is the general figure that the Minister thinks is adequate. All right. That is what the woman would get normally. However, she is dismissed and goes to the Labour Court. She was dismissed, shall we say, three years earlier. The Labour Court can give her two years and that is all they can give her. The employer refuses to pay. He is convicted in the District Court and the District Court thereupon can give her the three years. This seems totally inconsistent and there is no use telling me that two years is enough for the worker, because that is not what the Minister has said. The Minister in this Bill provides that in almost all cases the worker can get up to three years. Why this one exception?
The three years refer to payments of the balance between her pay and what she should get under equal pay. The two years refer to arrears of full pay. There is the added factor, of course, that it is —Senators have mentioned certain constitutional questions in the course of discussion on this Bill—open to conjecture whether the court would have the jurisdiction to give a longer period than the two years mentioned here.
I would be amazed to discover that some Article in the Constitution says that the Labour Court can give somebody two years' pay but not three years. The mind boggles as to what must be in the Constitution if that is so. I suggest to the Minister that he is totally misreading subsection (5) of his own section 8 in this Bill. This says:
In any proceedings brought by a person to recover arrears of remuneration to which he is entitled under this Act...
I hope I am right—I would be very disappointed to find I was wrong— that that means not merely arrears of wages on foot of equal pay but also on foot of wrongful dismissal. Surely the two must be in this subsection. It covers, in other words, both arrears of remuneration for equal pay and arrears of remuneration for wrongful dismissal. Therefore the Minister is, as a general rule, saying that if you are wrongfully dismissed you are entitled to three years' pay.
The Senator's amendment seeks the elimination of the two years.
I am not certain that it is the right way to do it. I suggest that the Minister could perhaps bring in something on Report Stage to improve it. I was endeavouring to throw it back to section 8 by eliminating this provision, simply to throw it back to the general provision of subsection (5) of section 8. I do not think I have succeeded in doing that because it says: "In any proceedings brought..." I think possibly that would not cover proceedings in the Labour Court. If it is held that it would not cover proceedings in the Labour Court then the way to deal with it would be to say "not in any such case more than 156 weeks' remuneration" or something of that kind. Certainly the matter should be tied up in order to have at all points of the Bill the same three years.
We could do what the Senator says on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In subsection (1) (d), line 32, to add "and may recommend her reinstatement in her former position".
This general point caused a great deal of discussion in the other House. The Minister said, in effect, that it was impossible to put a provision in the Bill whereby the Labour Court could direct the reinstatement of a woman in her original position. The point was made at some length that, where the Labour Court held that she had been wrongfully dismissed, the Labour Court should then go further and say, apart from giving her the arrears of pay she lost as a result of being wrongfully dismissed, she should also be put back in her job. The Minister said that this was impossible mainly because some provision in the Constitution concerning the rights of association would forbid it.
I cannot say that I am convinced on this. To me at any rate, as a relative layman, it seems to be a rather far-fetched reading of the Constitution. I would certainly vastly prefer to see an amendment made to the Bill to the effect that the Labour Court should have power to direct a reinstatement. However accepting the Minister's point, and accepting in particular the advice he has on the constitutional provision, obviously he will not accept an amendment in this House to say that the Labour Court should be able to direct her reinstatement in her former position.
I put down this amendment, therefore, to say that the Labour Court may recommend her reinstatement in her former position. This, obviously, eliminates completely any constitutional problem. Unless the Labour Court recommend that a woman worker should be restored into the position from which she was dismissed, there is no legal onus on the employer to restore her. It would be a very brave or a very foolhardy employer who under those circumstances did not restore her. While it is not legally watertight I would suggest very strongly that in order to make the point quite clear—I think we are all agreed on this—that, if a person has been wrongfully dismissed because of a claim for equal pay, she should be given back her job. This is what we believe and this is what the Government and the Minister believe, I ask the Minister to accept this amendment which, as I say, would appear to eliminate any danger of this section being unconstitutional.
I considered that question in drawing up the legislation about compulsory reinstatement but the advice available to me was that it was not possible to enact such legislation at the present time. Of course this presents difficulties in the later legislation on unfair dismissals. I have undertaken in the other House to have this whole matter re-examined to see how far we may advance to having such a right enshrined in later legislation.
The Senator's amendment would not add anything to the legislation before us. The legislation as drafted does not prevent the person's reinstatement and this amendment, as the Senator is aware, would not make it compulsory. He sees in it simply an exhortation to do this, but the impact of the entire legislation is to suggest to the employer that he should obey the law. I accept the sense in which the Senator puts forward this amendment but, as I said in the other House, I hope to look at this matter in a comprehensive fashion in the unfair dismissals legislation which will be necessary accompanying legislation to this particular Bill. It will be necessary to have that enacted to see this Bill is truly effective. I do not see that the Senator's amendment would materially alter the situation.
I do not really think the Minister can say it would not materially alter the situation. As this section stands at present the Labour Court, having considered the question of the dismissal of a woman, having found that she has been wrongfully dismissed, has no power to recommend her reinstatement. This would give them the power to recommend her reinstatement. The Minister knows very well that in ordinary industrial disputes, where very frequently the Labour Court recommend that a certain worker should be reinstated, in almost all cases he is. It is a very rare case that the employer would defy the Labour Court, public opinion and the trade unions in a matter of this kind. The matter is brought before the Labour Court by the trade union, the Labour Court considers it and very often recommend that a particular worker should be restored to that position. I would be very surprised to hear that in more than one case out of a hundred the employer does not carry out that recommendation.
It is totally wrong for the Minister to suggest that this would not add anything—that it does not add anything where on the one hand under his present section the Labour Court has no power at all to recommend the worker should be restored to her position. Under this amendment it has the power to make the recommendation, which in the vast majority of cases would certainly be accepted. It is quite wrong to suggest that it would not make any difference. The Minister talks about the legislation he will bring in in the future. It is very difficult to understand why this Bill is being brought before us 18 months before it will be law on the basis that many of the basic fundamental decisions have not yet been taken. The amendment should be incorporated in this Bill. A simple phrase inserted in section 10 giving the Labour Court the power to recommend her reinstatement to her former position could not possibly interfere in any way with the Minister's pending legislation. It is a basic point which would go far to ease the worries of many women workers who would undoubtedly be afraid to take proceedings under this Bill for fear of dismissal. It would go a long way towards discouraging employers who might feel like indulging in wrongful dismissal.
The main point of the Bill is that it discourages dismissal by having heavy penalties and by putting the onus on the employer. All these are intended to have a sufficient deterrent effect against the kind of dismissals that might eventuate on the enactment of the Bill without such provisions. That is the main hope of the Bill. It is based on these elements. There is nothing at present in the Bill to prevent the Labour Court from recommending the reinstatement of any woman. There is nothing that prohibits such a recommendation.
When I said that the Senator's amendment did not alter materially the legislation I meant that it does not make the necessary advance that I would have thought originally would have been possible to make, that is, provision of a compulsory reinstatement. That is the only material alteration that could be made effectively in this legislation. As it is drafted, there is nothing to prevent the Labour Court from doing what the Senator wishes.
I would be doubtful about that proposition. It seems that the powers of the Labour Court in this respect are laid down in great detail in the Bill. It is not a matter of settling industrial disputes. The Labour Court is being given separate additional detailed powers under this Bill. If there is nothing in this Bill giving the Labour Court power to recommend that a particular worker be given her job back, I strongly suspect that an employer under circumstances, if such a recommendation were made, could well be in a position to take action against the Labour Court on the grounds that it had exceeded its powers and functions. The Labour Court will have to be very careful under this Bill to stick rigidly to what is laid down in it. It will not be in a position to start doing things that are not laid down in it. It is a serious matter to tell an employer that he is to restore a worker. There could be a whole number of workers involved. In the absence of any reference to it in the Bill, an employer might very well have a successful legal action against the Labour Court. It is not at all realistic to make that point.
Even if the Labour Court, as the Minister suggests, has got that power, all the more reason, then to accept this amendment. We in this House feel that it would make a very big difference to this Bill, that it would be a considerable improvement. The Minister feels not. This matter has received a great deal of discussion. It would be a source of great worry to the workers concerned. That being so, even though he may feel that it would do no good, surely he ought to accept this amendment in the hope that it might do some good and in the certain knowledge that it cannot do any harm.
The powers of the Labour Court as an industrial relations forum would not be impaired by the passage of this Bill and the powers adhering to the Labour Court before now would attach to it still. There is the status of the equal pay officer. Reinstatement is not ruled out at Labour Court level. My point is that it has not been possible to have a strictly compulsory right of reinstatement involved in this legislation. The Senator's amendment does not bring us nearer to that point. This matter of compulsory reinstatement will have to be re-examined in the context of fresh legislation on unfair dismissals.
The matter of compulsory reinstatement will have to be re-examined sometime. I am not talking about compulsory reinstatement at all. I have given the Minister his point about his constitutional right of association. I have dropped that point. I deliberately excluded any element of compulsion in my amendment. What I am asking the Minister is, does he believe that it would do any harm to accept this amendment? I think it would do some good. He may not agree. Does he believe it would do any harm to accept it?
If an amendment does not add anything to legislation one is not being obstinate in not seeing the point in including it in legislation.
I take it the Minister accepts that it cannot be said positively that it adds nothing. It may add something. I think it will add a lot. He does not agree. Surely he must concede it must add something, if only as a warning to employers and encouragment to employees. Certainly it will not do any harm. It may well add something.
I will accept the amendment. I do not see where it adds to the legislation, but we are nothing if not reasonable.
I am grateful to the Minister.
Amendment agreed to.
I move amendment No. 9:
In subsection (3), paragraph (b) and paragraph (c), to delete "subparagraph (a)" and substitute "paragraph (a)".
This is almost a case of misprint. What happened was that section 10, subsection (3) (a) was introduced into the Dáil as an amendment and because of that it used the phrase "subparagraph" whereas on the opposite page 6 there is the identical series of subsections and paragraphs which use the word "paragraph". "Paragraph" is clearly the correct term and "subparagraph" is wrong. I suggest that it should be changed. My amendment is inadequate because when I put it in I could only find two references to "subparagraph" in paragraphs (b) and (c). There is a third one in the last line which I did not notice. The amendment, therefore, would need to be changed. If the Minister would accept the general principle that a paragraph is a paragraph and not a subparagraph perhaps he could bring in a definitive amendment on Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 10, as amended, stand part of the Bill."
Subsection (4) states:
A complaint under this section shall be lodged not later than six months from the date of dismissal.
In my opinion there should be some words providing protection by way of extending the times in certain circumstances to protect the categories of people I mentioned when I was discussing section 5. I have in mind people who are mentally feeble or have become mentally feeble after dismissal, who may be committed to a mental home; people who have to leave the jurisdiction for some reason or another and are unable to pursue their complaint within the period of six months; people who, for example, are hijacked and taken out of the jurisdiction and are unable to take the necessary steps to initiate their proceedings within six months.
The Workmen's Compensation Act of 1934 contained a section which provided this protection for workmen. I am practically positive the section is 31—I am not certain of the wording but I know it mentioned "death, absence from the jurisdiction" and of course the most important phrase, "or for any other reasonable cause, proceedings were not commenced by the workman within six months". If he could show to the satisfaction of the court—the Circuit Court in that case—that he had a reasonable cause for not doing so, he was allowed to commence his proceedings after the period of six months had elapsed. Once he could show reasonable cause for not commencing proceedings after six months, he could commence proceedings at any time afterwards.
I am sure the Minister will agree that there are many reasons why a dismissed person would be unable to commence these proceedings within the period laid down by him in this subsection. Some time ago when I was reading the other section in relation to section 5, I made a similar point. I feel certain the Minister will agree that this is a very essential provision.
Minors—people who start work at the age of 16 years—could easily be misled by their employers not to commence proceedings until after the statutory period as laid down in this Bill. I should like to hear the Minister's view on this.
Some time limit is desirable, as it would be difficult to establish the circumstances surrounding dismissals a considerable time after the occurrence. That is why this time period is included here. I think it is a reasonable period.
Surely the Minister will argue that in the circumstances I have pointed out there should be the extension of time. Would the Minister agree to look at the section I mentioned in the Workmen's Compensation Act, 1934, which is a similar section.
I will have a look at it before Report Stage.
Question put and agreed to.
NEW SECTION.
I move amendment No. 10:
Before section 11 to insert a new section as follows:
"There shall be displayed in a prominent position in every place of work a statement setting out in simple terms the rights given to workers under this Act."
This again is incorporated in the draft directive that will, in the next couple of months, I suppose, be brought before the EEC Council of Ministers. Apart from that I think it is a sensible thing to do. The Minister has told us that there will be about a dozen equal pay officers throughout the country. Obviously there will be very little they can do to enlighten female workers as to their rights under this Bill, which will then be an Act, nor do I think that necessarily one can rely in every case on trade unions to do this adequately for reasons of which the Minister is, of course, aware.
The Minister, I am sure, knows better than I do the success of this Bill when it becomes an Act after the end of next year will depend in very large part on the extent to which all the workers concerned are fully aware of their rights. I would suggest that, as proposed in the amendment, there should be displayed in a prominent position in every place of work a statement setting out in simple terms the rights given to workers under this Act rather like the provisions there are in various Acts for notices to be put up with regard to health matters, safety regulations and matters of that kind in different employments. It seems in this case to be a sensible step which will be well worth taking.
What we would propose to do would be to publish a short guide on this. The whole question of workers being properly informed about their legislative rights is a big question. It is best tackled in other areas by the provision of small clearly written booklets. We would propose also to have a good deal of advertisement on the provisions of this legislation. We think that would be more effective than the course suggested by the Senator.
I am certainly not suggesting that this amendment would be sufficient in itself. I am glad to hear the Minister is to have it advertised and to have leaflets distributed and so forth. These will be very valuable. However, I think he will agree that they are essentially a once and for all process wherewith you have a big splurge when the Act first begins to work, that is, advertisements in the newspapers, and I presume all female workers in the country will be sent copies of the pamphlet concerned. That is all right in January of 1976. What about 1977, 1978 and 1980, when a whole new series of women workers have gone out to work? It is a useful reminder to have in every place of work a statement of this kind. A copy of one of the Minister's advertisements would probably meet the bill, posted up on the wall so that day after day and year after year workers passed it by and it could gradually impinge on their consciences that these are their rights under this legislation. I am talking about the period long after the initial heave. I accept completely that in the early days of 1976 there will probably be a great deal done and that it would be a very foolish worker who did not have some knowledge of what the position was. I am thinking simply of the long grind over the years. I feel something like this would be very necessary.
Already preparations are on the way to publish a comprehensive booklet, which, I would hope, would be in the possession of every employee, male and female, throughout the country on their legislative rights. This should be ready shortly and would be revised on an annual basis. I think the Senator is right in saying that once-only efforts would not be helpful in this situation —that they should be continued so that all workers will be made aware of what their legislative rights are. I do not think the Seanad accepts that the advertisements alone would be sufficient but I would make the point that the measures I have outlined would be more effective than the Senator's amendment.
They are not mutual opposites—everything the Minister proposes to do I am entirely in favour of. The only reservations I have are that I am not certain to what extent the ordinary man or woman reads pamphlets. A great many very worthy documents are sent out but I wonder sometimes how many are read. I would envisage something in very simple terms—six to eight lines on a wall and a little bit of small print at the bottom saying "If you want to know more write to us and we will send you a pamphlet". I think that there is something to be said for a pamphlet centrally placed on a wall in each place of work so that workers will be reminded constantly. It is not a matter of principle. I am not going to press the amendment but I think it is one which could be valuable.
Amendment, by leave, withdrawn.
Sections 11 to 13, inclusive, agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."
I will not go over the ground, the Minister will be glad to hear, which was dealt with at some considerable length in the other House. Nonetheless I should like to reiterate that the original title—Conditions of Employment and Equal Pay Bill, 1974—really represented the position better than "Anti-Discrimination". What worries me about the Anti-Discrimination Pay Act is what the propagandas are. It seems to me that the title of a Bill or an Act ought to be straightforward, a clear statement about what is in the Act and how it relates to other legislation of the same kind. To talk about anti-discrimination immediately, to me at any rate, raises a picture of South African conditions. I do not think it is the kind of title that ought to be in our legislation but I am certainly not going to press the matter. The Minister heard plenty of it before and I do not think he is going to change his mind but I do not like it.
Question put and agreed to.
Title agreed to.
Bill reported with amendments.
An Leas-Chathaoirleach
When is it proposed to take the next Stage?
I will not oppose taking it tomorrow but I should like to reiterate that there seems to be a rush with legislation in this House. No sooner is it through the Dáil than it comes dashing up here and no sooner have we finished one Stage than we are asked to take another. Particularly in this case since the Bill does not come into force until 31st December, 1975, I cannot see the reason for rush. However, we are prepared to take Report Stage tomorrow. I will try to draft some more amendments tonight but I am afraid the staff will have some trouble in circulating them.
It is more to convenience the House than the Minister on this occasion.
My point is that if the Report Stage were taken next September or October or February, 1975, no harm would be done.
We are to set up a committee which will have a lot of work ahead of them.
Report Stage ordered for Thursday, 6th June, 1974.
Business suspended at 7 p.m. and resumed at 8 p.m.
