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Bill was introduced in 1974 (having originally been
mapped out by the Commission 011 the Status of
Women)' passed through both Houses before the
Christmas recess and was promulgated in the second
week of January. 1975.
The Irish Anti-Discrimination (Pay) Act 1974
An examination of the provisions of the Act
reveals that it apparently complies with most of the
minimum terms of the EEC Directive (with some
notable exceptions) — and this seems to have been
the obvious intention of the Legislature. Unlike the
British Act, it does not aim to achieve equal treat-
ment in other terms and conditions of employment
such as holidays, hours, provision of clothes and
sick-pay, but only in respect of pay. It may well be
that holidays provided for under the Holidays
(Employees) Act, 1973 and hours under the Minimum
Notice and Terms of Employment Act, 1973 will
bring our law into harmony with the U.K. Act in
some of these respects. As the Opposition put it in
the Dail, "We have had to have three Bills to do the
work of one." Against this, the U.K. may have to look
again at its Equal Pay Act in the light of the EEC
Directive.
The essence of the new Irish Act is to be found in
Section 2. Where a woman is employed by the same
employer on like work with that of a man in the
same place of employment, she will be entitled to
equal pay. However, different rates of remuneration
may be paid to employees in the same place of
employment on like work on grounds other than
sex, e.g. where service pay, incremental scales and
soforth, apply.
A crucial question arises regarding the area of
comparison which a woman may draw with men's
jobs. She may only compare her job with those of
men employed in the same place and by the same
employer if both are employed on like work (section
2(1)). Suppose the employer has three establishments.
A, B and C. The same job is carried out in all three
places by men and women. The men at A and B are
employed at the same rate but the women at A, B
and C and the men at C are paid at a lower rate.
The women at A and B are entitled to equal pay
with the men at A and B; but neither the women at
C nor the men at C are entitled to be paid the same
as the men and women at A and B. (The same defect
is to be found in the British Act: Hepple & O'Higgins,
Individual Employment Law, Sweet & Maxwell, 1971,
.p.99). Likewise, an employer could maintain two
distinct places of employment, employing solely men
at one place and solely women at the other; in such
case the women would not enjoy the right to equal
pay with that of the men.
Neither does the Act entitle women to equal treat-
ment with men in respect of so-called "ex gratia"
(or "discretionary") bonuses. (Such may be legally
enforceable: Edwards v. Skyways Ltd.—(1964) 1 All
E.R. 494).
What is more serious is that an applicant for a job
can be turned down lawfully on grounds of sex, and
promotion may lawfully be refused on grounds of
sex, unless there is a contractual right to upgrading.
However, during the debates in the Dail, the Minister
for Labour indicated that he intends introducing
proposals for further legislation dealing with dis-
crim ination in the areas of access to employment,
promotion and training.
The consequences of employing men on "women's"
work, or women on "men's" work, may lead some
employers to maintain a strict segregation. For it is
only if men arc doing "like work" of a "similar
nature" that women will be able to establish a claim
to equal pay. It follows that the Act is unlikely to
expand women's job opportunities, particularly in
areas of traditional segregation such as office work.
All these criticisms may similarly be made of the
British Act.
Section 3 defines "like work". Two persons are to
be regarded as being employed on "like work" where:
(1) both perform the same work under the same
or similar conditions or where each is fully-
interchangeable with the other in relation to
the work; or
(2) the work performed by one is of a similar
nature to that performed by the other and any
differences between the work performed occur
only infrequently or are of small importance in
relation to the work as a whole; or, finally,
(3) the work performed by one is equal to that
performed by the other in terms of the
demands it makes on each person.
Under section 4, in the absence of a term of a
woman's contract of employment or otherwise
entitling her to equal pay, the terms and conditions
of her employment shall include an implied term to
that effect; and this implied statutory term is to
prevail over an express term to the contrary: there
can be no "contracting out" of the Act.
Terms of employment which include unequal pay
provisions under a collective agreement, an employ-
ment regulation order made pursuant to the Indus-
trial Relations Act, 1946, Part IV, an employment
agreement registered under Part 111 of the latter Act
and an order made by the Agricultural Wages Board
under section 17 of the Agricultural Wages Act, 1936,
shall be "null and void" if made after the commence-
ment of the Act. Those made before the operative
date of the Act are not affected for the purely prag-
matic reason that there are so many of them that
it would be unrealistic to expect them all to be re-
negotiated before the operative date. Obviously, each
wiíl eventually fall due for review and the Act will
then apply to the new agreements, regulations or
orders.
Equal Pay Officers
Then come the "teeth" of the Act — or rather, the
guardians of it, in the form of "Equal Pal Officers".
They are to be appointed by the Minister for Labour
after consultation with the Labour Court and with
the consent of the Minister for the Public Service,
who will determine the terms of employment and
remuneration of the equal pay officers.