The Gazette 1973

Equal Pay For Women by MRS. MARY MATHEWS, LL.M., Solicitor The most recent declarations relating to equal pay include : (1) (a) The UN Universal Declaration of Human Rights, adopted by the General Assembly of the UN in December 1948 says in Article 23 (2) that "everyone without distinction has the right to equal pay for equal work", (b) In November 1967 the Declaration on the Elimination of Discrimination against Women was adopted, which says in Article 10 : "all appropriate measures shall be taken to ensure to women, married or unmarried, equal rights with men in the field of economic and social life and, in particular, . . . the right to equal remuneration with men and to equality of treatment in respect of work of equal value". (2) The European Social Charter, adopted by the Council of Europe in October 1961, provides in par 3 of Article 4 that the contracting parties shall undertake; "to recognise the right of men and women workers to equal pay for work of equal value". This paragraph was not universally accepted : among those who did not accept it was Ireland. (3) The ILO in June 1951 adopted a Convention (Convention No. 100) which contained the same provi- sions as those in the European Social Charter. It stated that "equal remuneration for men and women workers for work of equal value" refers to rates of remuneration established without discrimination based on sex. This Convention was ratified by more than seventy countries, including all the then members of the EEC, the UK (though not until after their Equal Pay Act, 1970, was enacted), Norway and Denmark. Ireland did not ratify the Convention. When a question arose in the Dail about this at the time, it was stated in reply that since the normal method of wage negotiation in Ireland is free collective bargaining, before deciding to ratify the Government would have to regard the trend in free collective bargaining concerning equal pay. (4) The Treaty of Rome, mainspring of the EEC, signed in March 1957, states in Article 119: "Each member State shall, during the first stage, ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work." Irish constitutional safeguards It is perhaps paradoxical that Ireland, the "non- ratifying country of international conventions" has at the same time constitutional safeguards covering dis- crimination against women. According to Article 40 (1) "all citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function." This provision was interpreted in the High Court by Mr. Justice Kenny to the effect that a policy or general rule under which anyone sought to prevent an employer from employing men or women on the ground of sex was prohibited by the Constitution : Prendergast nnA WnUh „ 1NT1VCIATA } 7 MAR rh 1Q79 J unreported. The protection in this case was wider than the issue of remuneration and extended to the actual terms and conditions of employment.

The Irish Constitution also provides among its Direc- tive Principle of Social Policy in Article 45 (1) that: "The State shall, in particular, direct its policy towards securing that the citizens (all of whom men and women equally have the right to an adequate means of liveli- hood) may through their occupations find the means of making reasonable provision for their domestic needs." In par. 142 of the Report of the Committee on the Constitution in 1967 the Committee surveyed this Article and felt that it should include "a provision establishing the principle of equal pay for men and women for work of equal value". Of greatest note in Ireland is the Commission set up on 31 March 1970 "to examine and report on the status of women in Irish society, to make recommendations on the steps necessary to ensure the participation of women on equal terms and conditions with men in the political, socia, cultural and economic life of the country and to indicate the implications generally—including the estimated cost—of such recommendations". This action was criticised by the then Opposition parties in Dail Eireann who accused the Government of the time of further staving the issue by the introduction of a com- mission. No doubt one can now expect speedier legis- lative action, but time has shown (particularly in the light of the think British legislation) that reflection and deliberation are necessary if a bone fide policy is to be effected at all. An interim report was issued by the Commission in response to Ministerial request in August 1971 and the Commission has sat for the last time recently. British Equal Pay Act 1970 The main purpose of this article is to look at the British Equal Pay Act 1970 with a critical eye, hoping that its deficiencies will not find repetition in Ireland. The Act (and a corresponding one in Northern Ireland) evinces the general intention that employers shall be obliged to give equal treatment as regards terms and conditions of employment to men and women. The Act therefore is not limited to securing equal pay. It con- tains three basic principles: (1) For men and women employed in like work the terms and conditions of one sex shall not be any less favourable than those of the other; (2) For men and women employed in work rated as equivalent the terms and conditions of one sex shall not be less favourable than those of the other in any respect in which the terms and conditions of both are deter- mined by the rating of their work; (3) Collective agreement shall not make any provision relating to men only or to women only. "Collective agreement" is defined so as to include any agreement between employers, their representatives, organisations or associations, and employees' organisations, their re- presentatives or their associations, and also any award based on such agreements. The principle extends to employers' pay structures, which are defined as arrange- ments adopted by an employer which fix common terms and conditions of employment for his employees or any class of them and of which the provisions are generally known. This last requirement was acknowl- edged in Committee as imprecise, yet it remained. 95