Wednesday, 23 June 1976
Seanad Eireann Debate
That the failure of the Government to take care, as it is obliged to do under Article 7 of Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, that the provisions adopted pursuant to that Directive, together with the relevant provisions already in force, are brought to the attention of employees by all appropriate means, for example at their place of employment.
I welcome the opportunity to draw attention to the failure by the Government, and by the Minister for Labour in particular, to ensure compliance by this country with the provisions of Article 7 of the EEC Directive on equal pay. Senator M.D. Higgins has indicated that he would like to contribute to this debate and I shall shorten my contribution to facilitate him and also of course to give the Minister for Posts and Telegraphs an opportunity to reply on behalf of the Government. I thank him for being present to hear the case put forward.
The particular directive No. 75/117/EEC, on the approximation of the laws of the member states relating to the application of the principle of equal pay for men and women, provides in Article 7 as follows:
 Member states shall take care that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force, are brought to the attention of employees by all appropriate means, for example at their place of employment.
This directive was passed on 10th February 1975 and allowed a year for its implementation, so it is fully in force since last February. It places a specific duty on the Government to draw attention of employees to the provisions of the directive itself and also to the national provision adopted by us as a member state. In our case that is the Anti-discrimination (Pay) Act 1974, which became law on 31st December 1975.
Not only is there a duty under this directive imposed on the Irish Government but I would submit there is also a clear duty imposed under the Constitution. That duty is imposed by the wording of Article 40, section 3, subsections 1 and 2. Subsection 1 provides:
It is now a right of every citizen in this country to be paid on a non-discriminatory basis in employment for like work. It is a right which has been further identified and promoted by the European Court in a case on which judgment was given on 8th April last, the Defreene case as it is called. In that case the European Court made it clear that it is a principle of European Community law, a fundamental principle, that there be equal pay for equal work; that this is a principle which cannot be derogated from by the member states, that it must be enforced and applied in the member states. Indeed the court made it clear that it was  a basic principle of the European Community from 1962, although the judgment itself was not retrospective in its impact or effect.
So there is a clear duty on the Government arising both from the directive and from the wording of Article 40 of the Constitution, and identified specifically by the European Court in the Defreene case on which it gave judgment on 8th April. There is an obligation to defend and vindicate the rights of the citizen; to bring home to the citizens—and in this case we are talking about the female employees affected by the Anti-discrimination (Pay) Act of 1974—to bring home to them actively in their work places, in every way that it is possible and by all appropriate means, the provisions of the Act. This includes the fact that they have rights under it, rights which they should enforce and rights which the Government should actively strive to defend and vindicate. What have the Government been doing?
First of all, they tried to get a derogation from these rights by tabling an amending Bill and by trying to get authorisation from the Commission for such derogation. Obviously, that subject is outside the scope of the adjournment debate and I do not intend to go into the details of it. But the Government still have listed on the Order Paper of the other House today that amending Bill which purports to be a Bill amending the Irish Act implementing the Directive. I refer to today's Order Paper of the Dáil, dated 23rd June, 1976; the Order Paper refers to “No. 25, Anti-Discrimination Pay (Amendment) Bill, 1975, Second Stage (Resumed)”. So, it could be ordered; it is still there. That is not actively promoting the rights to equal pay for equal work as provided in the Anti-Discrimination Pay Act, 1974, which came into effect on 31st December last. Nor does one get reassurance from the statement made by the Minister for Labour in the other House on 5th May, 1976 in relation to this question. Speaking on behalf of the Government he made a statement in the lower House—what I would regard as an ambiguous, confused and  muddled statement—about whether this Act which is law since 31st December last is really part of our law and is going to be enforced by the Government. He began—I quote from the Report of 5th May, column 687—by saying:
When the matter of the Anti-Discrimination Pay (Amendment) Bill, 1975 was raised on the Order of Business on 28th April, I undertook to make a statement to the House on the Government's intentions in relation to that amending Bill, after we had received a formal communication from the Commission in Brussels on the limited derogation provided for in the proposed Anti-Discrimination (Pay) (Amendment) Bill from the EEC Directive on Equal Pay. That formal notification of the Commission's decision has been received by us and our limited derogation from the provision of the Equal Pay Directive has been rejected by the Commission.
Then he goes on to give the basis on which the derogation was sought, and when asked by various members of that House to clarify the position he eventually—in a peeved and frustrated voice, one senses—said, at column 691:
I thought I had made it clear but I want to emphasise it once more. If we are not proceeding with the terms of the amending Bill then the Act operates fully. I would have thought that was quite clear. I am sorry that Deputy Haughey finds my presentation ambiguous but I thought I had made that clear.
But, of course, it is not either action or inaction on the part of the Government in introducing and then not proceeding with the amending Bill that makes the other Act fully in force. It came into effect on 31st December, 1975, is, and has always been, in full effect since that time. The Government could not in fact derogate either under our own Constitution or under the express ruling of the European Court in the Defreene case from the provisions of that Act. There is now a fundamental right to equal  pay: a right to be paid on a non-discriminatory basis. It is extremely disturbing that the Government are not promoting and vindicating the personal rights of the citizen, in particular the right of women of this country to be paid on a non-discriminatory basis. As a first step the so-called and purported amending Bill should be removed from the Order Paper of the Dáil.
Mrs. Robinson: Appropriate means have to start with full Government confidence in the fact that the Act is in force and of full effect as a law on our statute books not by sowing doubts and ambiguity with confused contributions and leaving an amending Bill on the Order Paper of the House. That certainly does not make for a clear picture. Let me deal first with what the Government have not done to bring it home to employees in this country—and of course specifically women workers here—that the Act is fully in force, and has been since the 31st December last, so that they have rights under it and that these rights are enforceable in the Labour Court and in our ordinary courts.
The Government have not, for example, put notices or advertisements in the national newspapers giving clear details of what the Act means. It is common practice for the Government to insert such notices, in particular in relation to EEC matters, such as notices about monetary compensation amounts, notices about particular provisions in relation to the shoe industry, to take a couple of recent examples. The British Government, which brought in a similar Equal Pay Act, put large notices, huge advertisements paid for by the Department of Employment, in all the British national newspapers. The notices said in large block capitals: “If you employ men and women the Equal  Pay Act is your business” and the notice went on:
“What are you doing about it? By 29th December, 1975 everyone who employs men and women will have to comply with the Equal Pay Act. And this applies to every firm no matter how large or small. If you have not already started making arrangements for equal pay, you would be wise to start now. Time is moving on. If you have any doubts about the obligations of employers under the Equal Pay Act you can find out quickly and easily. The Department of Employment has published a booklet”et cetera.
The reader could then fill in the form on the advertisement and the booklet would be sent to him. That is what I call active promotion of the rights of citizens as provided in the Anti-Discrimination (Pay) Act, 1974 for this country, and in England in their Equal Pay Act. That is what the Government should be doing; putting large notices in the newspapers. Many employers in this country still do not know that the Act is in force and that it binds them from 1st January last. A great many women workers do not know that the Act is in force and that they can enforce their rights under it. I do not blame them for their confusion because of the rather ambiguous and confused statements which have been made even in the last couple of weeks and are on the record of the Dáil.
The Government have not embarked on television and radio promotion of the terms of the Bill, which I would have thought would have been an appropriate way of bringing it home to the citizens of this country that there is now a right to be paid on a non-discriminatory basis, and that they can pursue that right. The onus was on the Government having introduced a note of confusion and lack of clarity into the situation, to clarify the position as soon as it became clear to them what was clear to anyone with a knowledge of or expertise in European Community law, that they could not derogate either under our Constitution or under European Community law from the principle of equal pay once it had  been introduced. When that attempt failed the onus was on the Government to use all forms of media coverage to promote knowledge of the existence of the right; to promote the terms of its enforcement in the Act, and to advise women workers how they could pursue their rights.
There is a specific onus on the Government because of the wording of Article 7 of the Directive to ensure that employers put up a large notice in their work place, to draw attention of employees to the terms of the Act and to draw attention to the fact that it created rights which could be enforced. This notice should include advice about the person to speak to in the firm, the method of going about it, et cetera. If employers themselves were not prepared to do it voluntarily then I would say the Department of Labour should have sent around notices to employers and required those employers to display those notices in prominent places in the work place. None of this activity has taken place. The Minister for Labour eventually appointed two equal pay officers to process claims for equal pay under the Anti-Discrimination (Pay) Act. It is my understanding that about 20 cases are being processed at the moment by these equal pay officers. This is an indication of the fact that nobody in an official capacity is really taking this Act seriously. Is it seriously envisaged that only 20 cases of unequal pay exist here and have existed since last January.
An Act has been on the statute books for six months and there are apparently 20 cases being referred. That is scandalous. It shows that there is no attempt to promote or bring home to them the rights of female workers. It results of course from the confusion which the Government produced, and I believe they are doing nothing to clarify the confusion. They are, in fact, trying to promote a status quo which they were not able to achieve by seeking a formal derogation from the principle of equal pay from the Community. They are trying to let us drift on and have as little discussion of the fact  that we have a law of the land that says people are entitled to and have rights to equal pay. That is very serious; because if that is the case it means that the Government are not observing the strict rule of law and are, indeed, undermining respect for the law. There is a very real onus on the Government to clarify the confusion and to take all the more active steps to bring home to citizens the existence of their remedies and procedures. For example, it should be the concern of the Government to ensure that the existence and function of these equal pay officers is known. Why do these equal pay officers not take part in special programmes on television, explain what their role is, what they are doing and how they meet the few requests that are filtering into them? There should be an educational programme on Government time—a Government-sponsored programme—as to the way in which people can pursue their rights.
The only step as far as I can see— it is a very minimal step but it is welcome in so far as it goes—is that the Department of Labour have recently published leaflets on the terms of the Anti-Discrimination (Pay) Act. They were distributed this month, six months after the coming into operation of the Act. I understand that the Department of Labour have brought out two such leaflets or booklets. One is an explanatory booklet for employers. The other is a booklet for women workers. It is a little more explicit. The explanatory leaflet to employers and employees, which was published at the beginning of this month, is a brief and factual booklet about the terms of the Anti-Discrimination (Pay) Act. It is not a promotional booklet. It is not anything like as explicit as the advertisements that I read out which the British Government published. It does not argue persuasively the rights that are there to be enforced: it informs on the terms of the Act.
The other leaflet is a leaflet which expressly says: “This leaflet aims to inform women workers about the provisions of the Anti-Discrimination  (Pay) Act, 1974.”. It is more explicit. It does say “this affects you” and “this is how this affects you”, “this is what you can do”. It is my understanding that there has been a very considerable demand for these booklets now that they are available. That is an absolutely minimal step. We are talking about rights of citizens, promotion of knowledge about their rights, vindication of their rights, bringing it home to every employee in every work place. This means also bringing it home to every employer— because there are hundreds if not thousands of employers in the private sector in Ireland who do not know that this Act is in force, that this binds them retrospectively and that they may pay later for an apparent lull at the moment in the enforcement of these rights. They may find themselves with very large retrospective payments to women workers when eventually the Government decide to discharge their obligation to promote the existence of the terms of the Act.
I have a series of questions to put to the Minister here today. First of all, what monitoring are the Government undertaking to ensure enforcement of the provisions of the Anti-Discrimination (Pay) Act, 1974? What advertising are the Government doing, including television and radio promotion of the terms of the Act? What educational drive is being undertaken to bring home to employers and employees the provisions of it even such as notices in the work places? Finally, what positive steps are being taken by the Government to redress the confusion and the indirect infringement of the rights of citizens of this country by an attempt to derogate from the principle of equal pay and subsequent failure to clarify the situation and to promote the rights of the citizens?
Mr. M.D. Higgins: Law is good law when it factually and materially changes the conditions of the people that are referred to in it. The law which referred to lack of discrimination against women invoked constitutional documents which established  a basis of right. I want to make a couple of remarks in the two minutes available to me.
When one establishes a right and invokes a constitution, no circumstances can then be adduced of an economic kind or any other kind which can take away from the granting of that right. The confusion which has existed has been brought about by the following: The public in general have not adverted to the tremendous trust involved in the Report of the Commission on the Status of Women and in the Article itself.
An Leas-Chathaoirleach: The motion deals specifically with the failure of the Government to do certain things under the Directive, particularly bringing the attention of employees to particular provisions and pieces of legislation.
Mr. M.D. Higgins: I was trying to make the point that Article 7 was being made in an atmosphere in which the public had gone through the motions of suggesting that it was willing to accept changes in the position of women in society but did not advert to the consequences of that. When the Commission's document was discussed, it was my opinion that one could change the position of women by changing the structure of society. In so far as this Article is in existence there is a comparison as to what we might do. In 1948, when this country wanted to advertise the necessity for building hospitals and houses, it produced an attractive booklet which was sent to the schools and to the public. It was a promotional booklet. It had such language in it as: “Ireland is building”. If we were sincere about changing the status of women in our society we would be sending attractive booklets, marketed by people on television, sending notices, engaging in the displays that Senator Robinson has mentioned. I am not introducing the larger issue of the suggested derogation of the Government. If you want to pass a law and have it meaningless you can bury it. But if you want to pass a law that is invoking a right and trying to change the consciousness  of the people, then you have to advertise widely and well that the position of woman is attempting to be materially changed. That costs money and sincerity. It is appalling that we are not more sincere about the legislation we pass and take the measures suggested by Senator Robinson.
Minister for Posts and Telegraphs (Dr. Cruise-O'Brien): I followed with attention the statements of Senators which will, of course, come to the attention of my colleague, the Minister for Labour. Speaking as I am on his behalf and on behalf of the Government, I should like to confine myself quite strictly to the definite subject matter before us, which is the claim which Senators made that the Government have failed to comply with Article 7 of the relevant Directive. Article 7 reads:
Member States shall take care that the provisions adopted pursuant to this directive, together with the relevant provisions already in force, are brought to the attention of employees by all appropriate means, for example at their place of employment.
It is clear, as in many other matters, that there would be room for difference of opinion as to what “all appropriate means” might be in the particular circumstances of any member state. Some Senators and Deputies might quite sincerely, as clearly Senators do, take the view that this requires, for example, an expensive and major media campaign: television, newspaper advertisements and so on. The Government have not taken that view at the present stage.
Senators will be aware that major national advertising campaigns can have bottomless pits of expenditure, very expensive indeed. The Government do not feel, at this stage of the matter, that it is absoluely necessary to engage in such a major campaign in order to comply with the terms of the Directive. I appreciate, again, that there can be legitimate differences of opinion on that. There can be a view that the means which the Government  deem appropriate are not appropriate, but they are making an effort in this area and believe that their effort is in compliance with Article 7.
Senator Robinson referred to two leaflets circulated. This is not quite correct; there are, in fact, three. There is a printed one for employers and employees and there are separate ones, a check-list for employers and guidelines for workers. Efforts have been made to get these into the hands of as many interested people as possible. A printed explanatory leaflet for employers and employees issued by the Department of Labour early in June gives general guidance about the provisions of the Anti-Discrimination (Pay) Act, 1974. The explanatory leaflet has been distributed to the Irish Congress of Trade Unions and also to the trade unions which have a large membership of women.
Dr. Cruise-O'Brien: Senators can take different views on that matter but the Leas-Chathaoirleach would not wish me to enter into the whole history of this case or the issues arising out of it. I should like to tell the House factually what the means are which have been adopted and which the Government consider appropriate so that Senators can then indicate at appropriate times and places whether they think they are appropriate or not, and why, and what further extension in their view might be given to them.
The leaflet in question was sent separately to the education services of the unions. It has been distributed to employers' organisations and to bodies such as the IMI, AnCO and the IDA. It has also been sent to the editors of the journals issued by trade unions and employers' organisations. In addition to this printed explanatory leaflet, there  is a check-list for the information of employers and guidelines for the information of workers which have had a more limited distribution but which are available on request. This publicity literature has also been issued to any person or organisation who made inquiry with the Department of Labour about equal pay.
The attention of all callers is drawn to the fact that there is such literature and copies of this literature are issued following phone inquiries. This distribution included the personnel officers of many firms. It is freely available on request to the Department of Labour. It is available in all manpower offices in the country. A wider distribution of this literature will continue. At least one large trade union intends to issue the literature to all its shop stewards throughout the country. The distribution which has taken place to date and which is planned in the immediate future amounts to 25,000 leaflets.
Under Article 7 there is an obligation on member states to take care that the legislation should—I have quoted the words before. It is not mandatory under the Directive to bring the provisions of the legislation to the attention of workers at their place of employment by post or other such means. This is quoted only as a sample of a method of bringing the provisions to the attention of workers. The wide distribution of the publicity literature is regarded, in our circumstances, as the most effective means of bringing the provisions of the legislation to the attention of workers. Any worker who successfully pursues a claim to equal pay is entitled to arrears retrospective from the date of the claim to 31st December, 1975, the date the Anti-Discrimination (Pay) Act, 1974, came into operation, subject to a maximum of three years' arrears. This retrospective provision means that workers who were late in becoming aware of their equal pay entitlement and in pursuing it successfully will not suffer a monetary loss.
In conclusion, I should like to make  two points. One is, that there is a possibility, in my view, that those who say that this method of informing those interested about the situation, their rights under the Directive and the Act, is not adequate may possibly be somewhat underestimating the capacity of the workers concerned to consult their own interests. The word that there are rights to equal pay will travel fast in any society to those who have a particular interest in securing these rights. It is quite clear from the information I have given the Seanad that the Department of Labour have made a genuine effort to get the necessary material, the necessary information, into the hands of people directly interested. That material has gone out.
Senators may take a different view, but I do not think that when it is a question of people's interests and of securing those interests, it is absolutely necessary to bombard them by television and by massive national advertising in order to bring those rights to their attention. The workers, and women workers, are intelligent and sensitive enough to their own interests to be able to follow up a clue. Furthermore, trade unionists, particularly women trade unionists, will be active in getting that word around. The Leas-Chathaoirleach may, possibly, in her interior mind agree with me on that point.
Finally, the Government would like to see this information reach the relevant public and an effort is being made to do that. In connection with that effort, I should like, on behalf of the Government, to welcome Senator Mary Robinson's motion and the support for it by Senator Michael Higgins. The publicity arising from this motion will probably stimulate further demands for information in this area and I am sure that these demands will be fully met.
Mrs. Robinson: I should like to ask the Minister if the Women's Representative Committee, or the Council for the Status for Women, were asked whether they considered that all appropriate means had been taken to bring home this Directive to workers.
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