Trade Unions, Gender and Claims under Irish Employment Equality Legislation

Gender, Work and Organization. Vol. 11 No. 6 November 2004

© Blackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford OX4 2DQ, UKand 350 Main Street, Malden, MA 02148, USA.

Blackwell Publishing Ltd.Oxford, UKGWAOGender Work and Organization0968-6673Blackwell Publishing Ltd 2004November 2004116ACADEMIC PAPERSTRADE UNIONS, GENDER AND CLAIMS

GENDER, WORK AND ORGANIZATION

Address for correspondence: *Mary Quinn, Dept of Management, NUI Galway, Galway, Ireland,e-mail: [email protected].

Trade Unions, Gender and Claims under Irish Employment Equality Legislation

Mary Quinn*

This article examines trade union activity in representing claimants atEquality Officer investigations under the Republic of Ireland’s Employ-ment Equality Act, 1977. This is set in the context of traditional trade unionsupport for gender segregation in employment and the observation thattrade union decision-making bodies still tend to be heavily male domi-nated. Use of the Act by trade unions is shown to have been mainlyreactive rather than strategic. Evidence is presented that, while someindividual union officials actively supported claims, this was not neces-sarily typical. It is argued that this represented a lost opportunity by tradeunions to push the equality agenda forward and is consistent with contin-uation of the patriarchal trade union tradition. The article concludes byarguing that significant change to this approach is unlikely, given currentgendered patterns of trade union governance.

Keywords: employment equality, legislation, trade unions, patriarchy, gender

Introduction and background

his article explores the activity of Irish trade unions in representing claim-ants at Equality Officer investigations under the Employment Equality

Act, 1977 (hereafter the EE Act). It seeks to address a gap in the literature onthe use of equality legislation by trade unions to combat gender discrimina-tion. The article considers whether the actual usage of the Equality Officerinvestigation was influenced by a patriarchal trade union tradition.

The EE Act provided for equal treatment regardless of gender or maritalstatus in access to employment, training or work experience, conditions ofemployment and grading or regrading of jobs. It has now been supersededby the Employment Equality Act, 1998, which extends non-discrimination

T

© Blackwell Publishing Ltd 2004 Volume 11 Number 6 November 2004

TRADE UNIONS, GENDER AND CLAIMS 649

employment rights to seven additional grounds, including race, religion andsexual orientation. The primary enforcement mechanism of the 1977 Act was,and still is, under the 1998 Act, investigation by an Equality Officer of com-plaints that individuals’ rights to equal treatment have been breached.

The EE Act had an inquisitorial orientation, with independent EqualityOfficers investigating claims. The Equality Officer position was establishedunder the Anti-Discrimination (Pay) Act, 1974 (s. 6). Complaints under theEE Act were subsequently added to their remit (s. 18). Equality Officers there-fore specialized in investigating breaches of employment discrimination law,enabling them to develop a depth of experience and expertise. This con-trasted with, for example, Britain’s Sex Discrimination Act, where the processis essentially adversarial in nature and both parties present their cases to anEmployment Tribunal1 which adjudicates on cases as presented. While theuse of Employment Tribunals keeps equality within the mainstream ofemployment law, negative consequences have also been identified (Morrisand Nott, 1991). Because their main activities are in other areas of employ-ment, the Tribunals do not have the opportunity to develop an expertise indiscrimination law. Individual members deal rarely with sex discriminationcases. Leonard (1987) found evidence of the misapplication of the law by theTribunals, including errors regarding the scope of legislation and the type ofcompensation available. Morris and Nott (1991) have suggested that special-ist chairmen and Tribunals who would build up a body of experience indiscrimination cases could ameliorate some of these deficiencies. The Irishsystem may have avoided these difficulties through the use of EqualityOfficers.

Theoretical and historical framework

Trade unions and their practices

If women are doing different jobs from men, it is relatively easy to maintaingender pay differentials. Segregation in employment is therefore the key towomen’s pay disadvantage and in turn, has implications for the class loca-tion of women (Walby, 1988). Hartmann’s (1979b) dual systems modeldepicts patriarchy and capitalism as inextricably intertwined, with a person’slife experience determined equally by gender and class. Job segregation bysex is explained as the intersection of capitalism and the patriarchy, whichbenefits capitalists and men, the dominant groups in each system.

Hartmann (1979a) argues that historically, the role of men as capitalists individing the labour market along ethnic, sex and race lines cannot on its ownexplain the sex-based divisions in the labour process. She presents evidencefrom the 19th and early 20th century of the exclusionary practises of a varietyof male unions. Hartmann (1979a) quotes Webb (1891, p. 649) who noted ‘the

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Volume 11 Number 6 November 2004 © Blackwell Publishing Ltd 2004

attraction to the employer of women’s labour is often less its actual cheapnessthan its “docility” and want of combination’. She holds that male tradeunionists played a significant role in subordinating women in the hierarchyof work, reducing the possibility of economic independence for women andencouraging them to marry. The domestic division of labour provided menwith the opportunity to exploit women’s home labour as well as reinforcingtheir labour market weakness. Hartmann (1979a) maintains that these his-torical developments strongly suggest that job segregation by sex is patriar-chal in nature and further, that men’s ability to organize in labour unions wasthe key to maintaining both job segregation and the domestic division oflabour.

As Walby (1989) observes, exclusion from particular work could no longerbe maintained in the second half of the 20th century due to the demand byemployers for cheaper labour and the successes of feminism. However, anauxiliary policy of segregation into low-paid jobs and industries and part-time work has limited women’s workplace roles. Continuing present-dayevidence of horizontal and vertical segregation, women’s low pay and thevirtual domination of part-time work by women (Equal OpportunitiesReview, 2001a and 2001b in the UK; Ruane and Sutherland, 1999, in Ireland)suggests that this form of patriarchal exploitation of women’s labour is still afeature of employment patterns.

The absence or gross under-representation of women as full-time tradeunion officials (FTOs) and in the senior levels of trade union hierarchies hasalso attracted attention (for example, Boston, 1987). Heery and Kelly (1988)found that female FTOs give higher priority than most male FTOs towomen’s needs in collective bargaining as well as to the recruitment andorganization of women workers. However, they also found substantial vari-ations within the female and male FTO cohorts. Younger, more recentlyappointed union officials of both genders with third-level education werefound to be more committed to using trade unions as a vehicle for equalityand were also critical of existing union priorities in this regard. Heery andKelly (1988) suggest that these findings indicate differences in priorities aris-ing from differences in socialization patterns among FTOs. If these resultshold in Ireland, it may be anticipated that FTOs will have widely differingpriorities in relation to equality which may have implications for potentialclaimants under equality legislation. It may also point to the importance ofunions taking strategic decisions on supporting the equality agenda ratherthan leaving such decisions to individual FTOs.

Collective bargaining has traditionally been favoured by trade unionsover direct legal action. Morris (1999) observes:

Given the nature of collectivism and a suspicion of the legal system, it isunsurprising that trade unions would prefer, by and large, to achievereform through ‘voluntary’ means and one of the undoubted advantages



of collective bargaining is that — where successful — it achieves benefitsfor a class, as opposed to an individual. It also removes from the individualthe responsibility for and the stress of direct conflict with the employer(p. 191).

She points out that relatively few workers use the law directly and most arebeneficiaries because of collective bargaining, where the law is an indirectinfluence, rather than because they themselves have appeared in court.

Accepting that unions prefer collective bargaining over the use of law tofurther their objectives, it must be noted that collective bargaining can alsofail to promote the equality agenda. Inequality may be evident in differentialrates of pay or, less obviously, in the priority placed on different bargainingissues (Colling and Dickens, 1989). They found little evidence of an equalitydimension in collective bargaining in their study of three sub-sectors ofBritish manufacturing industry. This absence was explained by powerfulinterests supporting the status quo, both inside and outside unions. Amongthe reasons suggested was a lack of information on the actual position ofwomen in individual organizations, a lack of awareness and commitment toequality within unions and company managements and the minority posi-tion in the union or the bargaining unit of women. Elsewhere, Dickens (1992)observes:

even in unions which have documented the disadvantage of their womenmembers, where there is leadership commitment to improving women’sposition and where equality structures have been established within theunion, problems remain in translating intention into action. (p. 111)

She identifies the male trade union culture, the nature of male power inunions and the separation of equality structures from the bargaining struc-tures as problematic. It is likely that these factors may also influence unions’use, or non-use, of legal measures to combat gender inequality.

There have been criticisms of British trade unions for being slow to usethe legal measures which had the potential to improve women’s positions.Boston (1987) observed that the UK trade unions

were even more reluctant to back them [women] in taking cases of dis-crimination to the tribunals than they were to back them in equal pay cases.(p. 321)

Cunnison and Stageman (1993) also criticized trade unions in the UK for theirreluctance from the early 1980s to use the new laws which could have helpedwomen to make progress in employment. This could be regarded as, at aminimum, a missed opportunity. It may also be interpreted as evidence offailure or refusal of trade unions to prioritize issues of particular interest towomen.

It has been argued that job segregation plays a crucial role in women’scontinuing disadvantage in the labour market. The EE Act presented an



opportunity, not previously available, to subject to scrutiny possible discrim-ination in the areas of employment practice that are critical to job segregation— recruitment and selection, training and work experience and job grading— and where claims were successful, to enforce changes. While claims couldbe brought only by individuals, trade unions, as worker representatives, hadthe choice of adopting a more or a less active role in encouraging and sup-porting these claims. This article examines one crucial measure of the level ofactivity of Irish trade unions in using the EE Act, that is, representing claim-ants under the Act.

The Irish context

Women’s employment in Ireland is characterized by familiar patterns of hor-izontal and vertical segregation and lower pay than men (see, for example,Durkan et al., 1995, Ruane and Sutherland, 1999). Many Irish unions origi-nated as branches of 19th century British-based unions and their practiceswould have been similar to those examined by Hartmann (1979a) and Walby(1989). More recently, Daly (1994) observed the ‘hostile climate’ (p. 110) forwomen trade unionists in the 1930s, illustrating this by the Irish NationalTeacher’s Organization’s (INTO’s) acquiescence in the introduction in 1934 ofa ban on married women teachers, despite having a majority female mem-bership. Elsewhere, O’Leary (1987) observes that this was ‘in marked con-trast with its militancy on pay cuts, [and] reveals a deep and widespreadacceptance of patriarchal values in the Ireland of the 1930s’ (p. 51). Daly(1994) also notes the trade union response to the Conditions of EmploymentAct, 1936, which gave government the power to ban or limit the numbers ofwomen working in certain industries. She quotes Senator Thomas Foran,President of the Irish Congress of Trade Unions (ICTU), in the Senate debateon the Act asking:

do the feminists want here what occurs in certain industrial countriesacross the water where the men mind the babies and the women go to thefactories? Do they want that in this holy Ireland of ours? (p. 110).

Up to the late 1980s, Irish trade unions’ main concern was the creation of full-time male jobs in manufacturing industries (O’Connor, 1998, p. 40). This coin-cided with the state employment policy, which from 1969 to 1975 included acriterion that to obtain state grant assistance, projected employment in newindustries had to be at least 75 per cent male (Mahon, 1994).

A substantially lower participation rate by women than men has tradi-tionally characterized Irish employment patterns. However, female tradeunion membership density has reflected, approximately, women’s labour



force participation. From the 1970s to 2002, the participation of Irish womenin the labour force grew very substantially and with it, women’s trade unionmembership (see Table 1).

Daly (1978) observes that women activists began to influence ICTUactivity contemporaneously with the growth in female employment andmembership. This also coincided with second wave feminism in Ireland.However, it was almost another 30 years before women’s issues were inte-grated fully into the ICTU’s policies. In 1965, the ICTU established a Com-mittee on Equal Pay. However, Galligan (1998) notes that this served as adevice to sideline the issue, and that Congress attempted to silence the stron-gest supporters of equal pay by excluding members of its Women’s Advi-sory Committee from the Equal Pay Committee. In 1969, the ICTU requestedthe Minister for Labour to establish a permanent consultative body to con-sider the problems of women at work. A Working Women’s Charter wasadopted by the ICTU in 1976, which included a demand for paid maternityleave.

However, while the ICTU proposals demanded change from governmentand employers, they did little to change the trade unions’ own organization,structures or policies to increase women’s influence or improve their statuswithin the trade unions themselves. The report of the Commission on theStatus of Women (1972) observed:

the position of women in trade union organization is relatively weak andtheir involvement as full-time officials is almost insignificant . . . Tradeunions must re-examine the role of women in their organization and face

Table 1: Women’s labour force participation and trade union membership rates1971–2002

Year

Female labourforce as % offemalepopulationaged 15–64

Female labourforce as % oftotal labourforce

Married women inlabour force as %of total women inthe labour force

% of ICTUmembers whoare female (year)

1971 34.12 25.72 13.55 26.5 (1970)1981 36.93 29.09 30.27 25.8 (1980)1991 40.46 32.72 40.81 33.4 (1990)1996 46.64 37.03 46.22 38.3 (1995)2002 48.9 40.4 47.7 39.4 (1998)

Sources: Ebbinghaus and Visser (2000), Ruane and Sutherland (1999) andCentral Statistics Office (2003).



up to the challenge of adapting themselves to facilitate constructiveparticipation by their women members. (p. 241)

Cunningham (1994) traces an intense struggle within the ICTU in the period1980–1982 between the traditional male establishment, which included somesenior activists and full-time officials (FTOs) as well as rank and file mem-bers, and the women activists. The most public manifestation of this was in1981 when the Executive Council rejected a report by the ICTU’s equalitysub-committee promoting the general principle of positive action to increasewomen’s participation. A redrafted version, which exceeded the recommen-dations of the rejected document, was accepted a year later. Nonetheless, thesame conference (1982) rejected a motion for reserved seats for women on theCongress Executive for the third consecutive year. That motion was acceptedby a very slim majority a year later after a ‘long, bitter and divisive debate,which gave a clear indication that all was not as equal as it was supposed tobe’ (Cunningham, 1994, p. 34). This exemplifies the nature and intensity ofthe struggle within the ICTU between opponents and supporters of the patri-archal tradition. From 1987 on, the promoters of change gained substantialground, with the ICTU setting five-year goals and timetables by whichprogress towards equality could be measured.

In 1993, when the ICTU’s (1992) ‘Mainstreaming Equality’ document camebefore its annual conference it was enthusiastically received. Cunningham(1994) notes this as representing a transition in ICTU policy from its earlyexclusionary and segregational approaches. But even as the ICTU inchedtowards policies supporting increased women’s involvement, some affiliatedunions found devices to restrain progress and even to circumvent officialCongress policy, suggesting firmly entrenched patriarchal attitudes amongsome unions. For example, when equal-pay legislation was being introducedin 1975, in compliance with EEC Directive 1975/117, some craft unions com-bined with employers in seeking to obtain a derogation from the requirementfor equal pay (Galligan, 1998), on grounds of fear of loss of male jobs.2

Cunningham (1994) cites an FTO of the Amalgamated Engineering Unionwho opposed Aer Lingus’ offering engineering apprenticeships to youngwomen in 1987 because this would deny opportunities to young men toobtain careers and become breadwinners. In 1982 a group of female clericalemployees of the Irish Transport and General Workers Union (IT&GWU,now the Services, Industrial, Professional and Technical Union [SIPTU]) wonan equal pay claim against the union. In 1993, one of the original claimantswon a victimization claim against SIPTU arising from the earlier case. Theseexperiences suggest that the changes noted above at the ICTU level had stillnot been fully accepted within many of the individual unions.

However, Clancy and MacKeogh (1987) cautioned against unions whichestablished women’s affairs committees with an ‘advisory’ role only, notingthat these committees could be a convenient instrument for marginalizing



Table 2: Women members and women executive/regional committee members for thesix unions with highest female membership

Women members (1995) as % of total

members

Women on Exec/Reg Committee

(1995)

No. (%) No. (%)

SIPTU(a) 66,000 (33) 3 (9)MANDATE(b) 20,000 (74) 13 (43)IMPACT(c) 13,600 (50) 7 (33)INTO(d) 20,500 (78) 2 (13)INO(e) 13,800 (98) 20 (91)CPSU(f) 8,400 (66.6) 11 (48)

Notes:(a) Services, Industrial and Professional Trade Union.(b) Union of Retail, Bar and Administrative Workers.(c) Irish Municipal, Public and Civil trade Union.(d) Irish National Teachers Organization.(e) Irish Nurses Organization.(f) Civil and Public Services Union.Source: ICTU (1995).

women, where women’s issues or ‘special needs’ could be debated with nocommitment to action unless endorsed by their male-dominated union exec-utives. Furthermore, O’Connor (1998) observes that while the ICTU is nowofficially committed to the implementation of equality at all levels within itsorganizational structures, nonetheless, power remains concentrated in pre-dominantly male hands. Table 2 shows that there is proportionality betweenthe number of women members and the number of women on the executiveor regional committees in only one of the six trade unions with the highestfemale membership.

Echoing Dickens (1992) cited earlier, O’Connor (1998) points out that con-tinued patterns of male domination of FTO positions and the male domina-tion of the ICTU’s executive illustrate the difficulty power-holders have inactually sharing power, even when they are ideologically committed to doingso. Consequently, she argues, the ability and willingness of Irish trade unionsto challenge the patriarchal structures of Irish life has been limited. There isa dearth of published research on equality structures and processes withincontemporary Irish unions. For example, there are no detailed Irish casestudies similar to those of Colgan and Ledwith (2000) or Healy and Kirton(2000 and 2002) in the UK.



The historical antipathy of trade unions towards women in employment,evidenced in union policies of exclusion and segregation, has been high-lighted in this section. Collective bargaining, the favoured trade unionmethod of advancing workers’ concerns, has been shown to place a relativelylow priority on equality issues. Elements of Irish trade unionism, even inrecent times, were shown to have been at best reluctant and at worst obstruc-tive when it came to improvements in the position of women in the work-place. There is some evidence of movement from this position, gatheringmomentum from the 1980s, and a tension in the Irish trade union movementbetween the opponents and supporters of change. However, males still dom-inate the power structures of the trade union movement. The relevance forthis article is that the trade unions’ use of the EE Act to progress the equalityagenda may be inhibited by continuing patriarchal influences. While publiclyembracing equality, unions may choose to prioritize action on equality or not.

Empirical research

Methodology

All Equality Officer recommendations issued under the EE Act from 1978 to2000 were traced — a total of 470. Of these, 335 or 71 per cent had femaleclaimants. Recorded details of claimant representation were analysed. Semi-structured interviews were also conducted with a number of FTOs, claim-ants, employers who had been respondents in claims under the Act and otherindividuals with experience of the workings of the Act. Interviewees otherthan those attached to public bodies were offered complete anonymity, whichall but one claimant and a retired trade union official accepted. This was cru-cial to achieving their participation in the research. Consequently, few detailscan be given here of the profiles of the interviewees — in particular, of thetrade unions that the FTO interviewees were attached to — other than thatthey included public and private sector unions and that all were affiliated tothe ICTU. Only 213 unions have represented claimants in recommendationsissued under the Act and the six FTOs interviewed were from five differentunions. All six FTO interviewees had represented claimants. Five were iden-tified by contacting the unions and asking for the individuals who dealt withequality. The sixth was a retired official whose name was suggested by sev-eral other interviewees as having been an equality activist in the trade unionmovement in the 1970s and 1980s. Two were male and four female, includingthe retired FTO. The 13 claimant interviewees were all female, comprising tentrade union members and three non-members, of whom two were formermembers. There were five male and one female respondent (employer) inter-viewees, all from organizations that recognized trade unions. There wereseven other interviewees with expert knowledge of the Act.



Quantitative results

Table 3 analyses the reported representation in all recommendations withfemale claimants from 1978 to 2000.4 Details are also shown by five-yearintervals from 1979 to 1998.5 Trade unions represented claimants in 47.5 percent of these recommendations, a total of 159. Representation by tradeunions rose substantially from only 11 recommendations between 1979 and1983, or 18.3 per cent of those issued, to 49.2 per cent, or 29 recommenda-tions, between 1984 and 1988. Thereafter, representation by trade unions rosemodestly in percentage terms to 51.9 per cent and 50.6 per cent respectivelyin the next two five-year intervals, but increased substantially in absolutenumbers to 41 and 45 respectively. These data suggest that trade unionswere very slow to become active in representing claimants under the Act. Inlatter years, they represented claimants in approximately 50 per cent ofrecommendations.

It is difficult to interpret these data as they stand. On the one hand, it mightbe expected that trade unions, whose business includes representing theirmembers in disputes with their employers, would represent a substantialproportion of claimants in disputes under the Act. On the other hand, it couldbe argued that representing claimants in 50 per cent of recommendations isevidence of doing just that. It is not possible to establish the number ofrequests for representation refused by trade unions, nor to establish whatproportion of claimants using other methods of representation were actually

Table 3: Number and percentage representation of female claimants by type

YearsTotal reccs*

EmploymentEqualityAgency

Tradeunions

Legalrepresentation

Lay person or norepresentationidentified

1979–1983 5% 18.3% 1.7% 75%60 reccs 3 11 1 451984–1988 35.6% 49.2% 1.7% 13.6%59 reccs 21 29 1 81989–1993 30.4% 51.9% 7.6% 10.1%79 reccs 24 41 6 81994–1998 21.3% 50.6% 14.6% 12.4%89 reccs 19 45 13 11(a)1978–2000 21.2% 47.5% 8.1% 23.3%335 reccs 71 159 27 78

Note: (a) The total from 1978–2000 exceeds the total from the five-year intervalswhich span only 1979–1998.* Recommendations.



union members. To assist in interpreting the quantitative data, the views ofthe FTOs about bringing claims under the EE Act were explored in inter-views. Claimants and employers were also interviewed about their experi-ences of the FTOs in these situations.

Enthusiasm and reluctance

All six FTO interviewees were enthusiastic about taking claims under theAct. They had all experienced some successes in representing claimants.Some referred to the satisfaction of winning a case for their member and thepossibility of extending the interpretation of the Act. Comments from FTOsincluded:

We do enjoy it . . . each case is a challenge . . . There’s great reward in thembecause . . . you’re changing a structure, be it in an organization or inchanging the way people think

and:

I have an interest in equality, not just in employment terms, [but] in allspheres of life, personal, political, and trade unions . . . As well asthat . . . there is a great buzz to be got from winning.

Some claimants also identified their unions as supportive. One described herunion as ‘Absolutely, 100 per cent supportive’. Another said her union was‘very interested and very encouraging. They said “this will be a brilliant testcase . . . we’ll go with this and we’ll do everything we can to help you” . . . Igot very good support’.

However, the FTO interviewees acknowledged that not all their FTO col-leagues were enthusiastic about working on equality claims. One explicitlylinked this attitude to older FTO colleagues, while another did not link itexplicitly to age but said that it applied to both female and male colleagues.FTOs tended to explain this reluctance by the onerous and time-consumingwork involved for officials who already carry a heavy workload. Theprocesses are also very different from all other forms of third-party involve-ment. Most union officials would lack experience of equality cases, a self-perpetuating problem if this makes them unwilling to support claims.

Analysing the attitude of union officials generally towards taking equalityclaims, one FTO said:

There is a reasonable number who would see it as a total pain in theneck . . . a minority who would see it as a challenge . . . They [claims] arevery demanding. They take an awful lot of time . . . I think to a degree it’sfear of the unknown.

Another FTO felt the reluctance to take equality claims was changing, butthat further effort was needed:



Union officials are hard-pressed, they’re overworked generally . . . Youtend to . . . cut corners and say, ‘Do I need a case that’s going to last threeyears, with submissions this size?’ . . . Ring up the employer, try and do adeal, go under an IR heading somewhere and try and sort it out, ’cause itsquicker. . . . We need to train our own people to make sure they don’t dothat.

Another FTO felt the time consumed by equality cases was balanced by thepotential of successful claims to bring about change. ‘You know that it isgoing to eat into a huge amount of time . . . [but] . . . it’s great that youfeel . . . you leave an impact in [the workplace] forever and ever’. In rela-tion to her own union, she said: ‘We always run with equality issues . . . wedon’t see it as a side issue.’ She added: ‘We may be different from otherunions.’

Another FTO emphasized the difficulties of proving equality claims:

If there is an element of unwillingness, it’s because there’s difficulty ofproving cases, rather than not wanting to pursue issues of discrimination. . . Any case . . . where we feel the evidence is strong, we’re very activelypursuing it.

Some claimants also showed an awareness of variations between individualFTOs. One claimant observed:

Just because you belong to a union doesn’t necessarily mean you will getthe support, because . . . you are dealing with people who have their ownagendas . . . and prejudices too.

Some employer interviewees also identified a reticence among some unionofficials to use the equality legislation, favouring other ways of resolving dis-putes. One manager felt that the sole claim taken against his company hadbeen pursued without particular enthusiasm. An HR manager from a high-tech organization felt that trade union officials were keen to resolve equalityissues at local level where possible. ‘The union officials . . . behave quiteresponsibly. They will try and . . . do the thing in the company, rather than leta claim be processed’. A HR manager in a commercial semi-state organiz-ation also felt that unions were not particularly active in bringing equalityclaims:

I don’t think they’re keen at all on them . . . they’ll do them . . . if they seemembers being victimized, but . . . I think they’d prefer nearly to, agreesomething or settle something.

These comments suggest no great appetite for taking equality claims by theunions concerned, possibly suggesting an implicit agreement by the unionsand management to protect the status quo. This echoes Colling and Dickens’(1989) conclusion that the absence of equality from the collective bargaining



agenda is partially explained by support for the status quo, both inside andoutside unions. The tendency to settle at local level is probably a less advers-arial way of resolving issues than referring a formal claim. However, itsimpact on existing structures and attitudes is likely to be limited, even withinthe organization where it occurs. It is extremely unlikely to have the broaderexemplar value of a recommendation by a statutory officer which wouldreceive wide publicity. The introduction of compromise in matters of rightshas been criticized as inappropriate by Graham and Lewis (1985) whileGregory (1986) regards conciliation in relation to rights as ‘a shabby com-promise’. Von Prondzynski and McCarthy (1989) suggest that conciliation ofstatutory entitlements is ‘manifestly out of place’ (p. 215).

Some claimants questioned the competence of their union officials. Oneobserved: ‘Our union branch . . . are just hopeless at the best of times’.Another claimant felt her FTO, a senior union official, failed to understanddiscrimination.

He did not take on board at all that it was discrimination . . . He was say-ing: ‘let’s just leave the discrimination bit to one side . . . we can deal withthat after, and that’s not really the issue’ and I was saying, ‘It is’. Soalthough I was getting help . . . I was fighting that battle a bit as well.

She also took an equal pay claim:

I was trying to explain . . . it doesn’t have to be the same job as long as it’swork of equal value . . . He did not understand even the basics . . . of theconcept of discrimination and equal pay.

The above findings also highlight the crucial role of the shop steward or localofficial as the mediator of a potential claim and suggest that a potential claim-ant may be deterred at the outset by an unsupportive first contact. Identify-ing a supportive official could therefore be crucial, particularly in view of theprevious finding that not all union officials are willing or competent to takeon equality claims.

Further supporting this conclusion was the finding that three claimantinterviewees who were particularly happy with their union’s support hadhad some form of privileged contact with their union. One of these claimantsknew the General Secretary of her union personally; another had served as avoluntary local representative for the union and knew her Industrial Rela-tions Officer very well. The third was advised by an insider to contact aparticular individual in head office, rather than going through her localrepresentative. By contrast, two other (joint) claimants had great difficultypersuading their union to pursue their claims. However, none of the FTOinterviewees identified the importance of the first point of contact in the wayclaimants did. Claimants’ experiences suggest that potential claimants mayhave more difficulty getting help from unions than these FTOs realize.



A feature of most unions whose FTOs were interviewed was the informal-ity of their procedures. The following summary by one FTO of the practicesin her union covers most of the variations in how claims were raised.

It’s a . . . combination of avenues . . . we get a fair amount of issues raisedas discriminatory in the women’s committee. We also get cases through thebranch committee . . . or we get individuals . . . coming directly to . . . the[union’s] equality officer, or they may go directly to their reps and thenthey’re channelled through. At the officers’ meeting then we discusswhether or not there’s merits in this.

The next stage varied between unions, some requiring a decision of the exec-utive or of a special committee whether to support claims, others placing it atthe discretion of individual FTOs. One union had a separate committee toformally evaluate possible claims and to recommend to the executivewhether or not to support them.

Such informality may have negative consequences as far as supportingequality claims is concerned. However, despite this informality and theviews of FTOs noted earlier, that many union officials are reluctant to take onequality claims, none of the FTOs interviewed expressed any doubt thatmembers with valid cases are supported. Given the high level of FTO dis-cretion regarding support for claims under the Act and the degree of varia-tion in individual FTOs’ expertise and enthusiasm to do so, potentialclaimants should not automatically assume that their local FTO will be sup-portive. They would be well advised to try to identify a supportive officialwithin the union before making an initial contact.

Possible collusion with discrimination

There was evidence among interviewees of resistance by some trade union-ists to moves towards gender equality, particularly in the early years. Tworetired interviewees who were active in industrial relations in the 1970s and1980s, a retired FTO and a former Labour Court Chairman,6 remarked on thesubstantial change in attitude demanded of unions when equality legislationwas introduced in the 1970s and the difficulties they had adjusting. Both alsocontrasted the public stance of some union leaders with their privately heldattitudes. The retired FTO recalled her union establishing a post for women’saffairs in the late 1970s, without, as she saw it, any real commitment:

There was no support . . . no secretarial service . . . no authority . . . theexecutive [comprised] . . . mainly, fairly elderly . . . men who would havefelt this was a strange thing altogether . . . The bread and butter issues totrade unionists were the wages and conditions of employment . . . Thethen General Secretary . . . said to me ‘you do know what this job[women’s affairs officer] is all about? . . . To keep these women from



battering on my door’ . . . So two-faced, because he was the very onewho’d stand up on a platform and talk about women’s rights.

The former Labour Court Chairman believed that:

Most of the men . . . who . . . dominated the trade union movement weredeeply antagonistic to all this . . . they were against equal pay, they wereagainst equal treatment for women because it was affecting their malemembers . . . The more money women get, the less men do . . . The onlyones that were making any progress on it were women trade unionofficials . . . either in the larger unions or in the [erstwhile] Women WorkersUnion of Ireland.

Graham and Lewis (1985) suggest that the reluctance of trade unions to sup-port claims under the Sex Discrimination Act in Britain was partiallyexplained by existing agreements to which the union is party. They foundthat where conflicts existed between equality and established union policies,local union representatives were likely to favour existing arrangements. Evi-dence was found from the interviewees of similar occurrences in Ireland.

Some claimant interviewees in the current study had explicitly challengedcollective arrangements and had been opposed by the institutional tradeunions which had supported existing arrangements. The cases referred toinvolved gender segregation of jobs to the advantage of the majority maleemployees. While two of these three cases originated in the 1980s and mightbe argued to be relics of the past, the third, from the early 1990s, is less easilydismissed.

In the early 1980s, one claimant interviewee challenged an agreementbetween her employer and a number of unions, including her own, on theexclusive allocation of overtime to males. During her case she was suspendedfrom her union and reinstated only after she took legal action. She herself washarassed by colleagues, members of her own and another trade union. Herclaim was successful. In the late 1980s, another claimant interviewee chal-lenged the closed shop in the print industry. ‘I took on my own union and Iwas told on several occasions to basically get lost’. She said that during theHigh Court appeal of her case in 1992 ‘I was approached by the [named]union who said “we’re protecting our members and we’re telling you, don’tdo this” ’. She believed the only members they were protecting were male.

Two other claimants took their case jointly in the early 1990s against whatthey felt was an unnecessary exclusionary restriction on certain jobs.7 One ofthe claimants was the only active female representative on the workplaceunion committee. Although represented by the union, they felt the union didnot really support the claim:

We’d no support from the union . . . Our union never wrote to us. We prob-ably gave them a good case for to fight with . . . but they didn’t doit . . . They worded it . . . to . . . suit themselves.



They also felt that when they received an unfavourable recommendation, theunion deliberately allowed the time limit for an appeal to expire. Since theirclaim was unsuccessful, it could be argued that the union’s reluctance to sup-port the case was well-judged. However, the restrictions they challenged wereremoved from all jobs in the company within a year. In this light, the unionposition could be seen as collusion with, or at least reluctance to challenge anaspect of structural inequality which resulted in excluding women from pro-motional opportunities, a traditional trade union policy identified earlier.

Unions’ objectives in supporting claims

FTOs were asked about their own and their unions’ objectives in bringingclaims under the EE Act. An ICTU official indicated that good relations withthe employer is an important objective:

If you’re going to have good working relationships in a workplace, andthat’s what you want at the end of the day . . . If there’s a possibility then,of negotiating it or bargaining it and sorting it out then . . . people reallyshouldn’t be using . . . the Equality Officer etc.

She also suggested that bargaining was more central to trade union activitiesthan legal processes: ‘If . . . it’s actually just referred and you’re totally relyingon the law, then equality becomes the law process rather than the bargainingprocess’. The risk of compromising equality when it is the subject of bargain-ing has already been noted. The risk for trade unions is that they may be mar-ginalized if equality is identified with the law rather than with bargaining.

One claimant interviewee felt her union was seeking an inappropriatelyconsensual approach because of its closeness to management, suggesting apossible conflict of interest between the union and an individual claimant:

The union . . . I think their objective was to reach an agreement that theywere happy with, that they made the management feel happy about . . . Soit wasn’t too adversarial.

This suggests mixed motives on the part of her trade union official. Suchmixed motives would place relations with the management of an organiz-ation on a par with or even above equality, especially if equality is definedsolely in terms of individual rights, as it was under the Employment EqualityAct, 1977. It may also explain some FTOs’ preference for direct negotiationover Equality Officer investigation.

One FTO spoke about resolving a problem and censuring the employer.‘What you want is someone to get a severe slap across the knuckles’. On a tac-tical level, another FTO acknowledged that as well as winning cases formembers, he used equality claims where he felt employers were not negoti-ating in good faith.



If I find an employer who doesn’t play the Industrial Relationsgame . . . there will be equality claims, payment of wages claims, dismissalclaims, they will be buried . . . I’m saying to employers . . . ‘if you don’t playthe game, we are going to hit you with everything we have and you’ll benight and day in the bloody Labour Relations Commission’ . . . Forinstance [named employer] . . . have gotten the hint . . . we now have anequality package this height . . . dealing with all areas of equality, familyfriendly, flexible work, the whole list . . . they got the message.

Some FTOs acknowledged that they had used an equality claim where therewas no other mechanism to force information from an employer. An FTOexplained:

Where people go to interview and what they’re really looking for isfeedback. . . . The only way you can . . . test a decision of an interviewboard is actually through equality legislation. . . . They may feel ‘ . . . Ishould’ve got that job and I’d like to know why I didn’t get it’. It’s not nec-essarily that they’re arguing that they were discriminated against. But wedon’t have any procedures . . . for . . . formal feedback from interviews.

Another FTO said:

There is no global plan . . . there isn’t any decision we are going to takehundreds of equality cases . . . It’s left down to everybody [FTOs] . . . ifthey decide to take a case or not.

This suggests a reactive rather than a strategic use of the Act in this union.One FTO had a strategic view:

Depending on the issue . . . we would use it . . . as a central plank . . . tochange fundamental things in the grading structure, or the pay structure,or the system in the [employment].

She was the only FTO interviewee who identified a strategic use of the Act byher union.

One employer interviewee, a senior civil servant, had experience of tradeunions adopting such an approach. He indicated that some civil serviceunions had identified practices that could be challenged through the Act andhad canvassed members to become claimants in cases they would take tochallenge these practices. No other employer interviewees identified such anapproach among the unions they dealt with.

Conclusion

It is over 25 years since the EE Act first presented a legal means of challengingactions in areas of employment crucial to producing and reproducing



gender-segregated employment patterns. Accordingly, trade unions werepresented with a new opportunity to make progress towards equality fortheir women members if they chose to use it. This article makes the case thattrade unions have not used the Act strategically. At best, they have followedmembers who themselves initiated claims. However, the levels of bothexpertise and enthusiasm were found to be highly variable among FTOs,suggesting an absence of a concerted engagement with the legislation as ameans of tackling inequality. At worst, there was evidence of trade unionssupporting discriminatory agreements against members’ claims of discrimi-nation, contrary to the Act. This suggests that the patriarchal trade union tra-dition is continuing in Ireland, and that what change has occurred may bemarginal rather than deep-rooted. Even in unions with espoused policies ofsupporting an equality agenda, an individual FTO may choose not to pursueclaims under the legislation. The under-representation of women as FTOsand on trade union decision-making bodies may militate against a strategicapproach.

While the 1977 Act is no longer on the statute books, there is scope for thestrategic use of its successor, the Employment Equality Act, 1998, by tradeunions to make progress on gender equality. This would require raising theprofile of equality within trade unions and the increased use of unionresources in the support of equality claims. It would also sometimes expli-citly involve prioritizing equality objectives over established practices andagreements. This, in turn, could be perceived by members as divisive. Colganand Ledwith (1996) found that the majority of the women activists they sur-veyed were reluctant to support measures which might divide their union.It may well be that the use of equality legislation will continue to be ad hocand incremental in most unions, even if there is a substantial increase in thenumber of women FTOs and women executive members.

Acknowledgements

The author is grateful to Dr. Wendy Richards, Keele University, who super-vised the doctoral research from which this article is drawn, to threeunnamed referees for helpful comments and to Brian Harney, NUI Galway,for editorial assistance.

Notes

1. Previously termed Industrial Tribunals.2. Although conceded by government, the request for a derogation was rejected by

the EEC Commissioner, who directed that the government implement equal-paylegislation immediately, according to the timescale agreed with the EEC.

3. A number of union amalgamations took place during the period covered by thestudy; this is the number of unions after these amalgamations.



4. The first recommendations were issued in 1978. While the Employment EqualityAct, 1998 replaced the EE Act in 1999, recommendations continued to be issued inrelation to claims that had already been submitted under the 1977 Act, of which 45per cent had been on the books for over three years. A small number of additionalrecommendations have been issued since 2000.

5. The analysis in five-year intervals spans 1979–1998, to exclude possible learningeffects in the first years and the trailing off of recommendations in 1999 and 2000.

6. The Labour Court investigated appeals against Equality Officer recommendationsunder the EE Act (s. 21).

7. The Employment Equality Act, 1977, allowed an exemption from the requirementof equal treatment in the case of existing protective legislation, including theFactories Act, 1955, which prescribed the maximum weight that could be lifted byfemales as 16 kg and by males, 35 kg.

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