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innocence. However important it is to protect
workers' rights, it is a sad day for our legal system
when its fundamental democratic principles can so
easily be trampled upon by ruffled female cx-
employecs.
Quite apart from the principle of Criminal Law
involved, it is recognised that a "negative does not
admit of the simple and direct proof of which an
affirmative is capable" (Taylor on Evidence, 12th ed.,
Vol. I, p.252). So the Legislature has relieved the so-
callcd weaker sex of the burden of "simple and
direct" proof and laid the heavy alternative onus on
her employer.
The Dnil debate on this point was, to say the least,
feeble. In the Upper House, Senator Yeats clearly
saw the danger and made a valiant effort to have
this provision amended. Contemporaneously, a similar
provision was being debated in the Dail in connec-
tion with the Food Standards Bill, and the Minister
gave this same simplistic reply to the Senate: there
are isolated statutory precedents for such a reversal
of the burden of proof, e.g. The Health Act, 1947,
section 64(2)(c). Mr. D. O'Malley, T.D., in the Dail
debate on the Food Standards Bill did not let the
matter pass him by, but he did not appear to see the
danger in the Anti-Discrimination (Pay) Act. At any
rate, there was a division in the Senate and of course
the majority was for the Government's provision. The
really disturbing factor is, not that a statutory pre-
cedent carried the day, but that similar provisions
appear to be favoured by the Government in further
legislation, as witness the Food Standards Bill: a
definite pattern seems to be emerging.
In addition to the conviction under section ? (1),
section 9(3)(a) provides that, on such conviction,
where the Court is satisfied that the employee would
be entitled to recover in such -civil action. The latter
is to be paid to the employee, and will be a good
defence to any subsequent civil action for such
arrears.
Dircct complaint to Labour Court
Section 10 grants a female employee the right to
complain direct to the Labour Court of her dismissal
solely or mainly because she had claimed from her
employer equal pay. In such case the Labour Court
is to investigate the complaint, hear the interested
parties as in the case of an appeal from the recom-
mendation of an 'equal pay officer, and may order
payment to the employee of the remuneration she
would have received to date of the order of the Court
if she had not been dismissed, but not more than 104
weeks' remuneration, and may recommend her re-
instatement. Penalties are provided' for such case as
under section 8(4)(b). Where there is such a convic-
tion, the Court may impose a fine of arrears of
remuneration, as under section 9(3)(a), payable to the
employee. Notwithstanding section 17 of the Indus-
trial Relations Act, 1946 which bars appeals from the
Labour Court to a court of law) appeal against the
order lies to the Circuit Court (in whose Circuit the
employer carries on business). Appeal against the
amount of the fine may be made by the plaintiff to
the High Court, or the Circuit Court.
There is a confusing variety of methods of
enforcement.
Misogynists will be pleased to learn that section
11 enacts that the equal pay provisions are to be
applied "to a man in relation to his remuneration
relative to that of a woman."
As regards the EEC Directive, the Act goes beyond
its requirements by providing a remedy for women
bv utilising the Labour Court for its purposes with-
out any cost to the litigants.
However, it fails to comply with the Directive's
requirements that the equal pay provisions be posted
up in every place of work. Also, the Directive requires
provisions for enforcement of equal pay "at the level
of the undertaking"; and the equal pay officers cannot
operate at that level.
It now only remains for the Oireachtas to lay to
rest forever De Lolme's proverbial assertion "that
Parliament can do everything but make a woman a
man, and a man a woman."
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