The Gazette 1975

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

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 i 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 92