The Gazette 1975

Their powers are wide. ((Section 6). In particular,

section 6M) is obscure and open to "dctoiirncment de

pouvoir", to borrow a phrase from the civil law: "An

equal pay officer may provide for the regulation of

proceedings before him in relation to an investigation

by him under this Act." The Long Tale in Alice's

adventures at once springs to mind — "I'll be judge,

I'll be jury," said cunning old Fury: "I'll try the whole

cause and condemn vou to death."

Evcn if the whole gamut of the principles of

administrative law and of natural justice — and the

Constitution

- are implicit in section 6(3), it can

only be regretted that the Legislature did not take the

trouble to spell out regulations for the procedure

before the equal pay officer, or at least provide for

making of such regulations by way of delegated legis-

lation (instead of wasting many valuable hours in the

Dail debating the short Title of the. Act!). One can

envisage that each Equal Pay Officer will make his own

set of regulations, and vary them for every case. That,

at least, the Act, as it stands, authorises them to do.

The specific powers of the Equal Pay Officers fall

into two categories, here termed "investigatory"

powers and "referral" powers.

The investigatory powers include:

(i) power to enter premises at all reasonable

times,

(ii) power to require the production of records,

documents and soforth,

(iii) power to inspect and take extracts from any

such records,

(iv) power to inspect work in progress.

Section 6(4)(b) sets out the sanction: a fine not

xceeding £100; or on conviction on indictment, a

ne not exceeding £1.000, the offence being the

bstruction of an Equal Pay Officer in the exercise

of his statutory powers, or failure to comply with his

requirements as shortly described at (ii) above. How-

ever, an investigation by an Equal Pay Officer is to

be conducted in private.

His referral powers come into operation (under

section 7(1)) when a party to a dispute between the

employer and employee refers the dispute to the

qual Pay Officer for investigation and recommenda-

. The investigation must be in accordance with

'he Act and not under any existing provision or

rrangement.

The Minister (for Labour) is also empowered to

deal with a situation which appears to him to be an

i fringemcnt of the equal pay provisions of the Act,

\ here there is no dispute or it is unreasonable to

pect the employee concerned to refer the matter

to an Equal Pay Officer (section 7(2)). The Minister

' to deal with such matter as if it were a reference

a dispute by an employee, i.e. refer it to an equal

y officer.

The Equal Pay Officer is to make a recommendation

ich shall be conveyed to the parties, to the Labour

(

urt, and, when the Minister has made the referral,

him also.

Appeal lies against the recommendation in the first

stance to the Labour Court either against the

or for a determination that the

V n has not been implemented. Such

appeal must be lodged in the Court not later than

42 days after Equal Pay Officer's recommendation.

The hearing in the Labour Court is to be held in

private, and sections 14 and 21 of the Industrial

Relations Act, 1946 apply (which provide for the

appointment of technical assessors and the summon-

ing of witnesses by the Labour Court).

Any information obtained by an Equal Pay Officer

or by the Labour Court in the course of an investi-

gation is not to be included in any recommendation

or determination without the consent of the persons

concerned. A party to a dispute determined by the

Labour Court may appeal to the High Court on a

point of law only.

Powers of the Labour Court

The Labour Court is empowered to order the

employer concerned to comply with its determination:

failure to comply with the order carries a fine on

summary conviction not exceeding £100 and, in the

case of a continuing offence, a further fine not exceed-

ing £10 per diem in diem (section 8(4)(b)).

In any proceedings brought under the Act a person

will not be awarded more than three years' arrears

of the remuneration to which such person (quaintly

described as "he") is entitled under the Act.

Section 9(1) makes provision for the case of dis-

missal because of an equal pay claim. It will be an

offence for an employer to dismiss a woman for the

sole or principal reason that she sought equal pay.

One can envisage a body of case law growing up

around the "reason" for the dismissal. Numerous

Trade Union cases on picketing have hinged on just

such a point (i.e. whether or not a "trade dispute"

exists). For example, in Silver Tassic Ltd. v. Clean

& ors. (1958) 92 ILTR 7, the managing director of the

Silver Tassie licensed premises dismissed an assistant

because he wanted to do his work himself. The

assistant's Union then placed a picket on the premises

and contended that there was no adequate reason for

the dismissal and, the Union believed, it was the first

step on the part of the management in a plan to turn

the premises into a non-union house. Dixon, J. held

that, even though the fears of the Union might never

come to pass, the very fact that the belief existed

and was bona fide, brought the dispute within the

Trade Disputes Act, 19Ú6. There might well be a

perfect parallel under section 9 of the Anti-

Discrimination (Pay) Act; an employer might well

want to dismiss a woman employee on the grounds

of assuming her work himself (or herself) with the

same result as in the Silver Tassie case, with this vital

distinction, as will be seen, that under the new Act

the onus of proof will be on the employer.

Section 9(2) actually reverses the burden of proof

that the dismissal was not on the grounds of sex,

and lays it on the employer. The offence is a serious

one—carrying a fine not exceeding £100 on summary

conviction, £1,000 for conviction on indictment.

Surely "he who asserts must prove" — the maxim

ei incumbit probatio qui dicit, non qui negat — is

fundamental to the basic principles of the criminal

law. The employer, it appears, under this section is

presumed guilty of the offence and must prove his