The Gazette 1975

A consideration of the Anti-Discrimination (Pay) Act, 1974

By GRAHAM M. GOLDING, Solicitor

In the United Nations' Declaration of Human lights, which may be said to have had its legal origin in the United Nations' Declaration of Human Rights Rights in 1949, was c o n c c r n c d , inter alia, with the realisation of equality of the. sexes. At Common Law, it need hardly be mentioned, an employer is at liberty to treat workers unequally either by the bestowal of favours or by the imposi- tion of burdens. This conflicts with the ILO Con- vention Concerning Discrimination in Respect of Employment and Occupation, 1958 (No. Ill), which required those ratifying the Convention to take measures against "any distinction, exclusion or pre- ference made on the basis of . . . sex" (inter alia) "which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation." (It might be added for the sake of completeness that the European Social Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) enumerate a number of human rights secured on similar grounds, but do not appear to include equality of the sexes as a fundamental human right). As part of the social policy of the EEC, Article 119 of the Treaty of Rome (1957) provides: "Each Mem- ber State shall in the course of the first stage ensure and subsequently maintain the application of the principle of equal remuneration for equal work as between men and women workers." This remained tin implemented by the Member States of the EEC until recently. Indeed, in many of the Member States women have gone on strike for equal pay, the most celebrated case being at the Belgian national arma- ments factory in 1966. Almost on the eve of International Women's Year, on 17th December, 1974, the Council of Ministers for Social Affairs met in Brussels and adopted a Directive on harmonising the application of equal pay for men and women throughout the European Community. Understandably, this has been a contentious issue since the Community was founded: and pursuant to Article 119, the Member States were given four years, later extended to six, to implement that Artic'e. Finally, as no satisfactory progress had been made, more than a year ago the Commission of the EEC put forward a proposed Directive on the matter (O.J. No. C 114/46, 27.12.73), which, as stated, has now been adopted. Directive on Equal Rights for Women The Directive commences by reciting that it is first of all the responsibility of Member States to insure the implementation of Article 119, but in

spite of the adoption by the Conference of Member States of a Resolution intended to implement har- moniously the principllc of equal pay, nevertheless "considerable differences may be observed in the national provisions." Therefore, the Directive con- tinues, it is necessary to remove these differences and to approximate the national provisions. Also, the Directive points out, even in those States with the most advanced legislation, doubts remain with regard to the practical application of the principles oi equality; and, in order that the growing number of female workers may benefit from the harmonisation of workers' living and working conditions as part of the balanced socio-economic development of the Community, it is necessary to improve and harmonise such provisions. (In Ireland, the Trade Union move- ment estimates that the average hourly wage paid to women is only 70°/ of that paid to men. Women com- prise 26% of Ireland's labour force. In large to medium size firms, however, women comprise only J to 2% of the management). The Directive decrees that Member States shall introduce into their municipal legal systems such measures as are necessary to enable persons who consider themselves aggrieved by the non-application of the principle of equal pay to enforce their claims before the courts. All discrimination between the sexes shall be abolished which arises from laws or administrative provisions implementing the Directive are to be punished. The provisions implementing the Directive are to be brought to the notice of workers and the laws of Member States are to be amended in accord- ance with the Directive within six months from the date of notification of the -Directive to the Member States. Such amended laws are to take effect not later than 31st December, 1975. In the meantime the United Kingdom has passed legislation along these lines: Equal Pay Act, 1970 (c. 41). It is not within the scope of this short review to study it in detail; suffice it to observe that it is becoming effective in stages, to be fully in force on 29th December, 1975 (rather an odd date). It appears that the British Act was, in part, a response to the claim for equal pay made by the TUC since 1888 and, in part, the result of international pressure on successive U.K. governments to ratify the ILO Con- vention of 1951 on Equal Pay (No. 100). The Report of the European Community for January/February, 1974, on Britain in Europe 1973 stated, "Britain's proposed anti-discrimination law, which will be the first of its kind in the EEC, will not go far enough." Turning to Ireland, the Anti-Discrimination (Pay) 90