Labour Court Database __________________________________________________________________________________ File Number: AEP8610 Case Number: DEP872 Section / Act: S8(1)AD Parties: LISSADELL TOWELLS - and - ITGWU |
Appeal by the Company against Equality Officer's Recommendation No EP10/1986, concerning a claim by fifty six named female employees for equal basic remuneration with certain male employees, and for the payment of production bonus at the same minimum level of performance.
Recommendation:
Due to technical difficulties the Determination cannot appear in
this field. It is, however, on the full document.
Division: CHAIRMAN Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEP8610 THE LABOUR COURT DEP287
ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. 2 OF 1987
Parties: LISSADELL TOWELS LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal by the Company against Equality Officer's
Recommendation No EP10/1986, concerning a claim by fifty six
named female employees for equal basic remuneration with certain
male employees, and for the payment of production bonus at the
same minimum level of performance.
Background:
2. The Company is a manufacturer of towels, bathrobes, sheets
and pillowcases and has a factory located near Carrickmacross,
Co. Monaghan. It produces high quality goods to customers'
individual specifications.
3. Undyed yarn is bought in by the Company and rewound onto
special cones by conewinders for dyeing to the colour specified
by the customer. When dyed, the yarn is rewound again by
conewinders onto appropriate cones in preparation for the weaving
operations. After weaving, the cloth is examined by cloth
inspectors for compliance with specifications before being sent
to the making-up department and finally packed as finished goods.
4. On 2nd July, 1985 (date of receipt of Union's letter, further
details in relation to the dispute received on 16th September,
1985) the Union requested an investigation by an Equality Officer
of a dispute as to whether or not fifty-six female employees of
the company are entitled under the Act to the same weekly rate of
basic pay as certain male employees of the Company and to be paid
production bonus at the same minimum level of performance.
5. The claimants are all employed as operatives in the making-up
department performing such jobs as cutter, sewing-machine
operator, automatic embroidery machine operator, folder/examiner
and shrink-wrapping machine operator. All the Company's female
operatives work in this department and all are paid the same
weekly rate of basic pay, currently #88.54 (as per Equality
Officer's recommendation No EP10/1986). They are also paid a
weekly production bonus which commences to be paid at 85% of
standard performance and reaches a maximum of 30% of basic pay at
117% of standard performance.
6. The men with whom the women claimed equal pay are also
employed as operatives. They perform respectively the jobs of
conewinder, cloth inspector and packer and, in common with all
other male operatives employed by the Company, are paid a weekly
rate of basic pay of #107.57 (as per Equality Officer's
recommendation No EP10/1986). One female who was recently
recruited by the Company as a conewinder but who has since left
was also paid this rate. Other jobs performed by men on this
rate include cleaner, dyer and weaver.
7. Male production operatives are also paid a weekly production
bonus. In their case, however, bonus commences to be paid at 70%
of standard performance and reaches a maximum of 30% of basic pay
at 120% of standard performance. The women's claim is that they
should also commence to be paid bonus at 70% of standard
performance.
8. In addition, some categories of male operative are paid what
is known as "a skills allowance". The level of this allowance
varies from job to job depending on the nature of the work
involved. Of the men with whom the women are claiming, however,
only the cloth inspectors are paid such an allowance. No skills
allowance is paid either to conewinders or packers.
9. A shift premium is also paid to workers on shift work.
The recommendation of the Equality Officer issued on 7th August,
1986, is attached at Appendix I.
Labour Court Investigation:
10. The Federated Union of Employers on behalf of the Company
advised the Court of their intention to appeal the equality
officer's recommendation (by letter dated 12th August, 1986). The
Irish Transport and General Workers' Union on 14th August, 1986
wrote to the Court requesting the implementation of the equality
officer's recommendation. The Federated Union of Employers on
behalf of the Company (by letter received on 16th September, 1986)
appealed the recommendation of the equality officer to the Labour
Court.
The Company's grounds of appeal were grouped under seven major
headings as follows:
(a) Interpretation of Section 3(c) -
Grounds of Appeal: Nos. 9, 10, 11, 14, 16, 17, 18, 19, 20,
22 & 23.
(b) Group claims -
Grounds of Appeal: Nos. 3, 4, 5, 6, 7 & 8.
(c) Definition of remuneration for the purposes of the Act -
Grounds of Appeal: Nos. 15, 24, 27 & 28.
(d) The facts of the case -
Grounds of Appeal: Nos. 1, 2, 12, 13, 18, 19, 25, 29 & 30.
(e) Use of employees not named as either claimants or comparators -
Grounds of Appeal: Nos. 20 & 21.
(f) Effect of Clause 2(3) of the Act -
Grounds of Appeal: Nos. 25, 26 & 30.
(g) Power to award arrears of equal pay -
Ground of Appeal: No. 2
The detailed grounds of appeal were as follows:
"1. The Equality Officer erred in law and in fact in holding that
the company was discriminating in rates of pay within the
meaning of the above Act.
2. The Equality Officer erred in law and in fact in ordering
that the claimants be paid equal pay and retrospective pay
three years prior to the serving of the claim. The company
will say that neither he nor the Court have any power to
award arrears of pay and that such power resides only in a
Court of law.
3. The Equality Officer erred in law and in fact in failing to
consider whether the female claimants were performing like
work inter se so as to enable them to claim as a group.
4. The Equality Officer erred in law and in fact in failing to
consider whether the male comparitors were performing like
work inter se.
5. The Equality Officer was incorrect in failing to carry out a
detailed analysis of the work of the female claimants inter
se having regard to such factors as are mentioned in section
3(c).
6. The Equality Officer was incorrect in failing to carry out a
detailed analysis of the work of the male comparitors inter
se having regard to such factors as are mentioned in section
3(c).
7. The Equality Officer erred in law and in fact in failing to
decide whether the female claimants were performing like work
inter se so as to enable them to claim as a group.
8. The Equality Officer erred in law and in fact in failing to
decide whether the male comparitors were performing like work
inter se.
9. The Equality Officer erred in his interpretation of Clause
3(c) of the Act.
10. The Equality Officer failed to take into account the matters
which he ought to have taken into account in arriving at his
conclusion that the female claimants were entitled to equal
pay with the named male comparitors.
11. The Equality Officer misdirected himself in law and in fact
by taking into account what he should not have taken into
account.
12. The Equality Officer's recommendation was against the
evidence or alternatively inconsistent with the evidence as
produced by the company.
13. The Equality Officer erred in law and in fact in deciding
that the named claimants were entitled to equal pay with the
named male comparitors.
14. The Equality Officer whilst acknowledging that section 3(c)
must be narrowly interpreted, incorrectly failed to apply
such a narrow interpretation.
15. The Equality Officer was incorrect in law and in fact
indeciding that the entitlement for equal pay is based on
basic pay only and not on total remuneration including such
items as skill allowance.
16. In particular, the Equality Officer was incorrect in
importing into the Act, an implication that the terminology
used in section 3(c) is derived from the practice of job
evaluation and he incorrectly sought to modify the words of
the Act having regard to his presumed interpretation of the
intention of the legislation.
17. The interpretation which the Equality Officer places on the
section is not consistent as he states at paragraph 14 (2)
with the definition in section 3(b) as interpreted in the
Toyota Motor Distributors case, reference EP 17/1985 and DEP.
1/1986.
18. The Equality Officer was incorrect in failing to carry out a
detailed analysis of the work of the claimants and the
comparitors in accordance with the Act.
19. The Equality Officer was incorrect in basing his decision on
his interpretation of the Act and not on a strict evaluation
of the jobs having regard to such factors mentioned in 3(c).
20. The Equality Officer was incorrect in examining the jobs of
Mr. McMahon and Ms. Keating, persons who were not named as
either claimants or comparitors and one which was not in the
employment of the company at any relevant time.
21. The Equality Officer acted in excess of jurisdiction in
choosing as a male comparitor a person not named by the
claimants in their application.
22. The Equality Officer erred in law and in fact when required
to establish whether work was equal in value in finding that
the work of the claimants was 'no less demanding than' that
of a particular named male employee.
23. The Equality Officer erred in law and in fact in considering
whether a 'material difference' existed between the 'womens
work' and the 'mens work' in the context of establishing
whether a claim existed for purposes of section 3 (c).
24. The Equality Officer was incorrect in law in deciding that
for the purposes of equal pay, only basic pay should be
examined and that in doing this, he failed to recognise and
implement the definition of remuneration set out in the Act.
In the case of Mr. McMahon and Ms. Keating, he ignored the
fact that these persons were in receipt of the same total
remuneration.
25. The Equality Officer erred in law and in fact in holding that
the different rates of pay were in reality different rates of
pay for male and female operatives.
26. The Equality Officer erred in fact and law in failing to have
regard to the contractual liability to work shifts on the
comparitors and some of the female claimants.
27. The Equality Officer erred in fact and law in his
interpretation of the requirement to pay equal bonus as set
out in paragraph 20 of his recommendation.
28. The Equality Officer erred in fact and in law in holding that
the female comparitors were entitled to the same bonus
structure as the males in that such an interpretation would
require as implied in paragraph 23 an adjustment not only to
the female bonus structure, but also to the male bonus
structure.
29. The Equality Officer erred in fact and in law by not carrying
out a detailed examination of the work of the claimants,
having regard to the factors set out in 3(c) and had he done
so, then on any reasonable objective evaluation of the jobs,
he would not have found the named claimants to be performing
like work within the meaning of this section with the named
male comparitors.
30. The Equality Officer erred in law and in fact in failing to
consider adequately or at all the grounds put forward by the
company under section 2(3) for the payment of different rates
to its employees.
31. Such further or other grounds as may arise at or be put
forward at the hearing of the said appeal.
32. The Labour Court is asked to give reasoning for its
determination."
11. The Court heard the appeal on 19th November, 1986. The
written submissions made to the Court at this hearing are attached
as Appendices II and III. Subsequent to this hearing further
written submissions were supplied by both sides, these are
attached as Appendices IV and V . On 30th April, 1987 the Court
wrote to both parties outlining two points to be discussed at a
further Court hearing, as follows:-
"The first is the apparent discrepancy in the statement
on page 20 of the Company's original submission "His
(Mr. McMahon's) gross pay is the same as that of the
claimants", and the figures submitted by the Union as
Appendix A of its submission dated 15th December, 1986.
The second issue which the Court wished to have the
Union's comments on is the statement on page 22 of the
Company's submission that "...... total remuneration
must be considered and one cannot separate the various
elements making up the total employment package
concept."
12. The second hearing of the appeal (on these two points) took
place on 5th May, 1987, the Union's written submission is attached
as Appendix VI.
DETERMINATION:
Due to technical difficulties the Determination cannot appear in
this field. It is, however, on the full document.
~
13. (i) The appellants have grouped the grounds of appeal into
seven major headings, the first of which relates to
the Equality Officer's interpretation of Section 3(c)
of the Act.
(ii) The question of whether the work of a claimant is
equal in value to the work of a comparator should be
decided by the Equality Officer in terms of the
demands which the work makes - not on the particular
individuals performing it, or by reference to the sex
of the persons performing it or by reference to the
pay of the persons performing it - but as objectively
assessed.
(iii) Factors such as skill, physical or mental effort,
responsibility and working conditions are examples of
the kinds of demands which may be taken into account
in the evaluation process.
(iv) As a general rule the factors which are in use in the
particular employment either explicitly, as in a
formal job evaluation scheme, or implicitly in a job
grading or classification system of pay, should be
adopted by the Equality Officer, except of course
where there is an element of sex bias in the factors
themselves. This is often the case.
(v) The Court does not consider that the Equality
Officer's opinion at para. 14 of his recommendation is
correct. To accept, as he does, that, "'equal in
value' means work that warrants the same rate of
remuneration" introduces circularity into the
argument. The Court therefore upholds this basis of
the appeal. It is not clear from para. 14 how far
this interpretation of Section 3(c) of the Act is
germane to the Equality Officer's conclusion and the
Court does not therefore set aside the Recommendation
on the basis of that paragraph alone.
(vi) Arising from his incorrect interpretation of Section
3(c), the Equality Officer, at para. 16 states that he
is "considering under Section 3(c) of the Act whether
the work performed by the women warrants payment of
the same rate of basic pay as the work performed by
the particular men with whom they are comparing". The
Court does not consider that this is the appropriate
question for the Equality Officer to decide under
3(c). Under Section 3(c) he has to decide if the work
is equal in value. If it is, it then becomes like
work and if there are no "grounds other than sex"
under Section 2(3) then, and only then, is he entitled
to come to the conclusion that the claimant is
entitled to the same rate of remuneration as the
comparator.
(vii) The conclusion of the Equality Officer at para. 18
that "As there is, therefore, no material difference
between the women's work and the men's work which
warrants their existing unequal rates of basic pay, I
must conclude, that their work warrants payment of the
same rate of basic pay and is, therefore, like work
within the meaning of Section 3(c) of the Act in so
far as basic pay is concerned" is invalid. There is
not a "material difference" provision in the Anti-
Discrimination (Pay) Act, 1974. Since it has already
been made clear that the only basis on which a
conclusion can be made under Section 3(c) is on the
value of the work, and as the Court finds that the
conclusion at para. 18 is not based on a finding of
equality in the value of the work of the claimants and
the work of any males, comparators or otherwise, the
Court upholds the Company's appeal. As the Court has
not found that the Equality Officer has made any
finding of equality between the claimants and any male
comparator or other male employee, the questions
concerning group claims raised by the second group of
appeals does not arise.
(viii) In relation to the third group of grounds of appeal,
the Court points out that, whatever the merits of the
argument that the recommendation is based on incorrect
interpretation of remuneration, the dispute which was
investigated was as stated in para. 1 of the
Recommendation, i.e. "a dispute as to whether or not
fifty six female employees of the Company are entitled
under the Act to the same weekly rate of basic pay as
certain male employees and to be paid production bonus
at the same minimum level of performance". Under
Section 7(1) of the Act the Equality Officer is
empowered to investigate a dispute "in relation to the
existence or operation of a term (in this Section
referred to as an equal pay clause) included by virtue
of Section 2 in a contract of employment or implied by
virtue of Section 4 in terms and conditions of
employment".
(ix) The equal pay clause in Section 2(1) refers to the
same rate of remuneration and an Equality Officer's
investigation must be concerned with total
remuneration in the first instance. The subsequent
question of the make up of remuneration must be
decided on the facts of each case.
(x) The Court determines that the appeal succeeds on this
ground also.
(xi) The fourth ground of the Company's appeal relates to
the facts of the case. As the Court is upholding the
appeal on other grounds relating to the interpretation
of the Act the Court considers it unnecessary to deal
in detail with these issues.
(xii) The fifth ground of appeal concerns the introduction
of employees into the claim who were not named either
as claimants or comparators in the original claim.
The Court agrees with the Company that it would not be
permissible for the Equality Officer to introduce a
new comparator into the claim when there was no
dispute in existence in relation to that employee.
However that is not what the Equality Officer did in
this case. It appears to the Court that the Equality
Officer sought to follow the example of the procedure
which had been adopted in the case of Toyota and
approved by the Court in DEP-1-86. The circumstances
of that case were different, however. In the Toyota
case the Equality Officer examined the work of
employees who were not named as comparators in order
to help him gauge the range of duties actually
performed by the named comparator. The employees in
that case were "in the same grade and in receipt of
the same rate of pay as" the named comparator. In
this case Mr McMahon was not in the same grade or in
receipt of the same rate of pay, i.e. remuneration, as
the comparator and therefore it is not appropriate to
examine his work in an effort to elucidate the range
of work performed by the comparators who were named.
The Court must therefore uphold the appeal on this
ground also.
(xiii) In view of the fact that the Court has found that
there was no finding which would entitle the Equality
Officer to recommend that there is an entitlement to
equal remuneration in this case the Court does not
consider whether there is any ground other than sex to
justify the payment of unequal remuneration. The
Court does not therefore deal with the sixth ground of
the appeal.
(xiv) In relation to the seventh and last ground of the
appeal the Court considers that the Equality Officer
has the power to recommend that a particular rate of
remuneration be paid from a date not earlier than
three years prior to the date of referral of the case
to the Court and that the Court has the power to make
a determination on that question. However, this power
only arises when the Equality Officer has found like
work. This did not happen in this case and so he was
not entitled to make a recommendation in this
particular case.
Signed on behalf of the Labour Court
21st May, 1987 John M Horgan
U.M./P.W. --------------
Chairman
APPENDICES
CONTENTS
1. APPENDIX I - Equality Officer's
Recommendation.
2. APPENDIX II - Union's first submission -
Labour Court hearing of
19th November, 1986.
3. APPENDIX III - Company's first submission -
Labour Court hearing of
19th November, 1986.
4. APPENDIX IV - Union's second submission -
subsequent to Labour Court
hearing of 19th November,
1986.
5. APPENDIX V - Company's second submission -
subsequent to Labour Court
hearing of 19th November, 1986.
6 APPENDIX VI - Union's third submission -
Labour Court hearing of
5th May, 1987.
NOTE: Regarding references to attached appendices, etc, in the
submissions - these are not included here, details were
supplied to the Court.
1.
APPENDIX I
Equality Officer's Recommendation
RECOMMENDATION:
10. The dispute in this case concerns whether or not the
fifty-six female claimants are entitled under the Act to the same
weekly rate of basic pay as certain male employees of the Company
and to be paid production bonus at the same minimum level of
performance.
11. The Union's case on behalf of the women is based on sections
2(1) and 3(c) of the Act which provide as follows:-
"2.(1) Subject to this Act, it shall be a term of the
contract under which a woman is employed in any place
that she shall be entitled to the same rate of
remuneration as a man who is employed in that place by
the same employer ...., if both are employed on
like work."
"3(c) Two persons shall be regarded as employed on like
work where the work performed by one is equal in value
to that performed by the other in terms of the demands
it makes in relation to such matters as skill, physical
or mental effort, responsibility and working
conditions."
12. The Company, however, has refused to concede the claim on
the following grounds:-
2. APPENDIX I
(i) that the work performed by the women is not as
demanding as that performed by the men and, therefore,
is not like work within the meaning of section 3(c) of
the Act; and
(ii) that even if the work is like work, the women have no
valid claim to the same rate of basic pay as the men
because the men's higher rate is based on their
contractual liability to perform shift work and this
constitutes grounds other than sex within the meaning
of section 2(3) of the Act.
Section 2(3) of the Act provides as follows:-
"Nothing in this Act shall prevent an employer from
paying to his employees who are employed on like
work in the same place different rates of
remuneration on grounds other than sex."
13. The first issue I have considered is, therefore, whether or
not the claimants and the named males are employed on like work
in terms of section 3(c) of the Act. Initially, however, I have
considered the meaning of section 3(c) which in the light of the
particular circumstances of this case and the arguments made by
the parties appears to require clarification.
14. In my opinion, work that is "equal in value" means work that
warrants the same rate of remuneration and "like work" within the
meaning of section 3(c) as a whole means work that warrants the
same rate of remuneration in terms of the demands that it makes
upon the persons who perform it. It does not necessarily or
simply mean work that is equally demanding, as appears to be the
3. APPENDIX I
Company's interpretation of what it means, and if that is all
that it was intended to mean, then surely section 3(c) would have
simply referred to work that is equally demanding rather than to
work that is equal in value. Clearly, work that is equal in
value was intended to mean more than simply work that is equally
demanding and, in any case, work that warrants the same rate of
remuneration is a more realistic and sensible interpretation of
what it means for the following reasons:-
(i) it is consistent with the nature and practice of
job evaluation from which the terminology used in
section 3(c) is derived and with the fact that it
is usual practice for employers to treat jobs that
are evaluated, by formal means or otherwise, as
being appropriate to the same grade, but not
necessarily equally demanding, as the same for pay
purposes. Indeed, some elements of remuneration
are paid to workers on the basis of factors other
than the particular demands of their individual
jobs, e.g., a shift premium expressed as a
proportion of basic pay or a meal allowance of a
fixed amount. It would not make any sense,
therefore, to deny a woman the same treatment as a
man in relation to such elements of remuneration
simply because her work was not as demanding as
that of the man in terms of the types of factors
mentioned in section 3(c). A broader
interpretation of section 3(c) is necessary in
order to deal sensibly with these and other cases;
and
4. APPENDIX I
(ii) it is consistent with the most comparable other
definition of like work contained in the Act, i.e.
the definition at section 3(b) as interpreted in
the case of Toyota Motor Distributors Ireland
Limited and Ms. B. Kavanagh (refs: EP 17/1985 and
DEP 1/1986).
Therefore, while I might agree generally with the submission
made by the Company that section 3(c) should be interpreted as
narrowly as reasonably possible because the Act as a whole
constitutes a restriction on the freedom of an employer to pay
his or her employees as he or she wishes, in accordance with
market forces, I do not agree that the Company's interpretation
of section 3(c) is a reasonably possible or correct one. In my
view, it is a narrow interpretation that was not intended and
does not make complete sense.
15. The practice of grading for pay purposes is evident within
the Company itself where all the claimants are paid the same
weekly rate of basic pay even though the Company, as stated in
its own submissions, does not consider all of them to be employed
on equally demanding work; the same applies in the case of the
Company's male operatives as is clear from the fact that they are
in receipt of different levels of "skills allowance" in addition
to their higher rate of basic pay. There is in each case,
therefore, a range of jobs which the Company treats as equal for
the purpose of basic pay even though it does not regard all of
the jobs in each range as being equally demanding. The
differences between the jobs in the range performed by the women
are not so marked but, in the case of the men, the jobs performed
5. APPENDIX I
range from that of ordinary cleaner, which attracts no skills
allowance at all, to that of a weaver which attracts the highest
level of skills allowance.
16. Therefore, in considering under section 3(c) of the Act
whether the work performed by the women warrants payment of the
same rate of basic pay as the work performed by the particular
men with whom they are claiming, it is appropriate to consider
whether there is any material difference between each of the jobs
in the range performed by the women and each of the jobs in the
range performed by all the Company's male operatives which
justifies a difference in their rates of basic pay, or,
alternatively, whether the existing difference in their basic pay
is in reality based on some extraneous factor such as sex
discrimination, which the Union has submitted as being the case,
or the fact that the men are contractually obliged to work
shifts, which the Company has submitted.
17. I have, therefore, investigated each of the jobs performed
by the women and as many of the jobs performed by the Company's
male operatives as was necessary to assist me in considering the
case. I have also investigated the history of the two different
rates of pay and their application as between men and women on
any occasions in the past on which men and women might have
performed the same job. The following are my findings:
(i) The work performed by each of the women appears
to me to be no less demanding than the work
performed by at least one of the male
operatives, namely, Mr. Mahon, the cleaner whose
duties consist mainly of cleaning certain
offices and the canteen, cleaning company cars,
6. APPENDIX I
and keeping the factory yard tidy. As Mr. Mahon
is in receipt of the same rate of basic pay as
the men with whom the women are claiming, and as
the women perform work which is at least as
demanding as that performed by Mr. Mahon, there
can, in my view, be no justification for the
difference between the women's rate of basic pay
and that of those particular men, at least in
terms of the demands of the work that they
perform.
(ii) The two different rates of pay were
traditionally known as male and female rates and
only in more recent times have been referred to
by the Company as different rates for different
jobs. Employment Regulation Orders made in
respect of workers covered by the Handkerchief
and Household Piece Goods Joint Labour
Committee, who include workers employed by the
Company, used to fix a statutory minimum rate of
pay for female workers. However, as no such
minimum was ever fixed in respect of male
workers in the industry, the Company's
submission that it used to be obliged by law to
have different rates for males and females does
not hold up.
(iii) The different rates were paid to a male and
female cleaner who used to perform essentially
the same work on a regular basis (Mr. Mahon and
Ms. Keating).
7. APPENDIX I
18. Taking all these conclusions together, my overall conclusion
is that the two different rates of basic pay are in reality
different rates of basic pay for male and female operatives which
apply regardless of any differences between the demands of their
individual jobs. Clearly, therefore, any differences that may
exist between the work performed by each of the claimants and the
work performed by each of the males with whom they are claiming,
in terms of the factors mentioned at section 3(c) of the Act, are
entirely immaterial in relation to, or, in other words, are not
the reason for, the difference between their rates of basic pay.
That difference seems to me to be entirely due to sex
discrimination notwithstanding the recruitment recently by the
Company of a female conewinder at the men's higher rate of pay.
As there is, therefore, no material difference between the
women's work and the men's work which warrants their existing
unequal rates of basic pay, I must conclude that their work
warrants payment of the same rate of basic pay and is, therefore,
like work within the meaning of section 3(c) of the Act insofar
as basic pay is concerned.
19. I do not accept the Company's submission under section 2(3)
of the Act that the males are paid a higher rate of basic pay
because of their contractual liability to work shifts. Apart
from the fact that the two rates used to be known simply as male
and female rates, both males and females have this liability
written into these contracts of employment and there was never
any understanding between the Company and its employees that the
males were being paid extra because of any extra liability on
their part in this respect.
8. APPENDIX I
20. The remaining issue concerns the different levels of
performance at which the men and the women commence to be paid
bonus. Except insofar as it is calculated as a percentage of
basic pay, this bonus is essentially a measure of the workers'
output rather than the intrinsic nature of their jobs in terms of
the types of factors mentioned at section 3(c) of the Act. Given
that basic pay should be the same in both cases, I am therefore
satisfied that there is no difference between the work performed
by the claimants and the work performed by the named males, in
terms of those particular factors, which justifies the different
levels of performance at which they commence to be paid bonus or,
indeed, which would justify the payment to the women of a lower
amount of bonus in respect of any given level of performance.
Clearly, insofar as bonus pay is concerned, the work performed by
the claimants and that performed by the named males is also like
work within the meaning of section 3(c) of the Act.
21. The women's claim to be paid bonus on reaching 70% of
standard performance is, however, somewhat complicated by the
fact that, at the other end of the scale, the women are paid full
bonus (30% of basic pay) on reaching 117% of standard performance
whereas the men must reach 120%. This was pointed out by the
Company and means, in effect, that the women are paid more bonus
than the men at 117% of standard performance. Therefore, if the
women are to be paid bonus on reaching 70% of standard
performance, while retaining their advantage over the men at the
other end of the scale, they will actually be paid a higher
amount of bonus than the men in respect of all levels of output
between 70% and 117% of standard performance, and not just only
at the top end of the scale. It was suggested by the Company,
therefore, that the women's claim was of its nature inconsistent
9. APPENDIX I
with the terms of the Act and by the Union that the women would
also work to 120% of standard performance in order to earn full
bonus.
22. However, having considered the meaning of a "rate" of
remuneration, it seems to me that there is in fact nothing
illogical about the women's claim as it stands insofar as the
provisions of the Act are concerned. A "rate" of remuneration
is an amount of remuneration proportional to one or more factors.
In the case of the women's basic pay, for example, it is simply
so much per week. In the case of their bonus pay, however, it is
proportional to a number of factors including the level of
performance at which bonus commences to be paid, the upper level
of performance at which it ceases to be paid, the maximum amount
of bonus that can be earned at that upper level and, of course,
actual performance. This would be obvious from the mathematical
equation used by the Company to calculate the amount of bonus
payable to each woman each week.
23. It follows, therefore, that whereas two simple weekly flat
rates of pay must of their nature be either completely the same
or completely different, in terms of their value to an individual
employee, a rate of bonus such as that paid to the workers in
this case can be of the same value in some respects and different
in others, depending on which factor in the rate is in question.
This dispute concerns one particular difference between the rate
of bonus paid to the claimants and the rate of bonus paid to the
men which is to the disadvantage of the claimants and I cannot
see any reason why the claimants should have to accept some other
disimprovement in their rate of bonus in order to obtain their
statutory entitlement to have that particular disadvantage
removed from their contracts of employments. If any further
10. APPENDIX I
adjustment to the bonus scheme is required by the Act in order to
bring about a complete equalisation of the men's and the women's
rate of bonus it is
to the upper level of performance at which the men earn full
bonus.
24. In view of my foregoing conclusions, I consider that the
claimants are entitled under the Act to the same rate of basic
pay as the named males and to be paid bonus at the same minimum
level of performance. Accordingly, and having regard to the
provisions of section 8(5) of the Act, I recommend that the
claimants be paid the same rate of basic pay as the men with
effect from 2nd July, 1982, the date three years prior to the
reference of this dispute to me, or from the date they commenced
employment in the Company, whichever is the later in each case. I also recommend that each of the claimants be paid bonus on
reaching 70% of standard performance with effect from the same
date.
1.
APPENDIX II
UNION'S FIRST SUBMISSION -
LABOUR COURT HEARING OF 19TH NOVEMBER, 1986
Chairman, Members of the Court
The appeal now before the Court marks a watershed in the evolution of
equal pay casework. We see this hearing as being a test case in
which not only will the Act itself be on trial, but also the ability
of the parties directly concerned to accept the social and economic
issues which are directly related to the concept of equal pay.
The appeal raises issues involving an interpretation of the concept
of the legislation, as well as the Act itself, and in the course of
our submission we intend to deal with both aspects.
Before doing so, however, there are some preliminary points we would
put to the Court.
1. The first is that the manner in which the grounds of appeal have
been stated are such as to necessitate our reserving the right
to seek an adjournment of the hearing should points be put to
the Court on which we might require legal or other advice before
proceeding.
2. The second point we would put to the Court is that the legal
jargon used in the grounds of appeal is not readily understood
by the layperson. We would ask the Court to address that
particular point in order to ensure that claimants are not
disadvantaged by the use of wording with which they are
unfamiliar.
3. The third and final point is that we would ask the Court in its
determination to detail why it may be impressed by one argument
rather than another. We would stress it is essential for us to
know the Court's mind in respect of issues of major importance
contained within this appeal.
2. APPENDIX II
Grounds of Appeal:
Many of the issues put by the FUE involve an interpretation of the
concept of equal pay as well as the legislation itself.
To deal with this aspect we have examined the whole issue of equal
pay, the reasons for the existence of the legislation, and the
intentions of the legislators when they were framing the statute.
We see this as essential in ensuring we don't get tied up in
intricacies and lose the overall perspective required to view equal
pay in its full dimension.
3. APPENDIX II
Historical Perspectives of the Legislation
The Anti-Discrimination (Pay) Act, 1974, was framed largely in
accordance with the recommendations of the Report of the Commission
on the Status of Women. The concept, however, of giving equal pay
for work of equal value had been advanced many times in the years
before the Commission issued its interim report in 1971.
The Universal Declaration of Human Rights adopted by the General
Assembly of the United Nations in 1948 stated that: "Everyone,
without any discrimination, has the right to equal pay for equal
work".
In 1951, we had the ILO Convention 100, containing certain proposals
with regard to the principle of equal remuneration for men and women
workers for work of equal value.
The European Social Charter, adopted by the Council of Europe in
1961, provides that the contracting parties undertake "to recognise
the right of men and women workers to equal pay for work of equal
value".
The Declaration on the Elimination of Discrimination against women,
adopted by the United Nations in 1967 states that "all appropriate
measures shall be taken to ensure to women, married or unmarried,
equal rights with men in the field of economic and social life and,
in particular, .... the right to equal remuneration with men and to
equality of treatment in respect of work of equal value".
4. APPENDIX II
At the time of the introduction of the Anti-Discrimination (Pay) Bill
into Dail Eireann we had a situation in this country where women's
earnings fell drastically short of the earnings of men. When the
Commission on the Status of Women reported in 1972 it gave average
hourly earnings figures in March 1972 in industry of 37.6p for women
on adult rates and 65.6p for men. At that time the most recent
Quarterly Industrial Inquiry, which related to September 1970, showed
that 65 per cent of men earned more than #20 per week while only 2.3
per cent of women earned that figure. Seventy five per cent of all
women earned less than #12 at that time, while only 1.8 per cent of
the men earned less than #12.00.
This was the pattern which had existed, and which it was felt was
likely to continue to exist, unless legislation which was
sufficiently forceful was introduced.
The legislators, in discussion the Act, realised that what was being
attempted was to change the attitude of society.
Deputy George Colley, speaking during the second stage of the Bill in
1974, stated:
"It is a very deep-seated attitude. It is tied up in
thousands of years of acceptance of the man as the
breadwinner. Now one does not reverse attitudes grown up
over thousands of years overnight. There is a failure to
recognise the very quick changing character of society both
here and in other countries and many of the attitudes valid
in a different economic environment are not valid today.
5. APPENDIX II
One cannot accept for a moment that legislation, no matter
how comprehensive, will overcome all the problems
associated - not just with equal pay for women; that is
the priority we are dealing with at the moment - with the
position in society of women not merely as equal to men but
as, perhaps, co-equal with men to distinguish the basic
fact that the characteristics and requirements of women in
society are different from those of men. This does not
mean that women should, because of that, be inferior to men
or treated in an inferior way".
Deputy Hogan O'Higgins, in agreeing with deputy Colley stated:
"There is, in this country, a bias against women in
employment. It probably stems from the general feeling
that a woman's place is in the home and any woman who is
not working in the home is somehow less equal. I can
understand the reaction to some extent. Male employers
look on women as cheap labour, slightly inferior to the
male employees in their establishment and, because the law
was such a woman had no redress if she decided to question
her position in her employment; she usually got a week's
notice or sometimes less".
"In the main, I would say, when women began to work first
they worked not for the love of it. They had to because of
the financial necessities of the family which drove them
out to work. They were glad to accept any kind of pay and
conditions".
6. APPENDIX II
"Even though they did the same work as the man in the same
establishment, they were glad to accept less. I have often
heard a girl say that such and such a man was leaving her
employment establishment and that she was getting his job.
But, if you asked her was she getting his pay, she would
say: "Oh no, I am getting a few extra pounds a week to do
his job"! She was glad to get the few extra pounds and
accepted it".
"We (women) are quite definitely classed as second-class
citizens, mainly because the male in this country has been
recognised as the head of the household, the leader of the
little family unit, in all matters supreme, and it was
expected that the woman should bow to his superiority or
supremacy".
It was realised that, because of the nature of the legislation,
employers, not being used to paying women the same rates of pay as
men, would probably try to circumvent the legislation.
Deputy Moore put it in the following way:
"No matter what legislation is brought in here it cannot be
100 per cent watertight but it should be made as watertight
as possible, first of all, to discourage employers from
thinking they would get away with the exploitation of
female labour in 1974".
7. APPENDIX II
"However, human nature being what it is we still have
employers - they were there in the time of Dickens - who
may be in the minority, but who nonetheless, as a minority
in the labour market, could cause a great deal of trouble".
During the discussions in Dail Eireann on the Second Stage of the
Bill, various questions were put to the Minister for Labour about
specific points in the legislation, and in particular what the
intention of the Minister for Labour was with regard to these points.
Deputy Eileen Desmond raised the problems associated with determining
equal value, in particular of the problems found in France and
Germany where a strength requirement was more heavily weighted than a
dexterity requirement, and stated that there was a need for job
evaluation. The Minister confirmed that job evaluation would be
concerned with this aspect.
Several Deputies questioned a provision which stated:
"Nothing in this Act shall prevent an employer from paying
to his employees who are employed on like work in the same
place of employment different rates of remuneration on
grounds other than sex".
8. APPENDIX II
The Minister for Labour in replying to the comments, stated the
following:
"The intention of that subsection is to allow for the
payment of different rates in certain circumstances - for
example, in respect of long service. It is important that
provisions be made whereby one worker could be on a rate of
pay different from another. These differences would not be
discriminatory but would be based on seniority and service.
It would not be the function of this Bill to attempt to
alter that situation".
During the Committee stage on the Anti-Discrimination (Pay) Bill,
many amendments were put forward, and from our point of view we got
an opportunity to see the thinking of the Minister for Labour on both
his intentions and the intentions of the Government in the
legislation that was being discussed.
In moving amendment number 8, which related to Section 3 of the Bill,
the Minister explained his proposal to insert "in value" after
"equal" in this manner:
"This section indicates the circumstances where equal pay
would apply. It generally represents in legal language the
recommendations of the Commission on the Status of Women.
The Commission recommended that equality in rates of pay
between men and women should apply in any circumstances
where:
9. APPENDIX II
- the jobs performed by men and women are of equal value in
that the demands (for instance in relation to skill,
physical or mental effort, responsibility and working
conditions) made on a woman are equal to the demands made
on a man in respect of the work each performs: Roughly,
that is the intent of Section 3(c) and it is in keeping
with the corresponding recommendations of the Commission".
In defending the totality of Section 3 of the Bill the Minister
stated:
"While the original definition is wide enough, if we did not
have section 3(c) the Bill would be very narrow in scope.
The equal value definition must be supplemented by a
further clarification, as is done here. This follows the
lines of the report of the Commission on the Status of
Women and section 3(c) is in the direction of the demands
they made. Section 3(c) is for the purpose of widening the
scope of the Bill to include as many as possible. The
demand is not restrictive, it is the reverse, in that it
extends it. One must not forget that there will be job
evaluation officers who will adjudicate in the area of
demand. It would weaken the legislation if section 3(c)
were dropped".
10. APPENDIX II
In moving amendment number 18, the Minister was very specific on why
this change was being made:
"As a result of this amendment a woman employee's
entitlement to equal pay shall date from a date up to three
years before the date on which her case was referred to the
equal pay officer".
The report of the Commission on the Status of Women, therefore, is
very much the source of section 3(c) of the Act, and the view of the
Commission was also supportive of job evaluation as a means of
assessment of equal value. It will be noted that the Minister used
the title "Job Evaluation Officers" for the Equality Officers as we
know them today, indeed in 1974 Deputies expressed concern to ensure
that these Officers would be trained in job evaluation techniques.
The Dail and Senate debates of 1974 also offer some insight into how
the social partners should approach the legislation. The Minister,
in March, 1974, said:
"I visualise the vast majority of equal pay claims being
settled through direct negotiations between employers and
trade unions".
11. APPENDIX II
In the debate on the appeals procedure under the Bill he goes on to
say:
"In our situation the Labour Court enjoys a high reputation
at the centre of our industrial relations system as a body
trusted by both employers and unions. I would hope that
this would contribute towards the acceptability of
decisions in this area".
The Employment Equality Agency have a statutory function in regard
to equality legislation. They, in their Code of Practice, set out
their view of what section 3(c) means, and the place of job
evaluation in defining equal value, stressing the requirement that
sex bias must be guarded against. The full text of this section is
set out in Appendix A and we ask the Court to note its contents as
being the nearest possible "official" interpretation available
covering the equal value clause of the Act.
In that excerpt we ask the Court to note in particular the quote from
the British Equal Opportunities Commission Report "Job Evaluation
Schemes free from Sex Bias (1981)"-
"A commitment to a fair job evaluation may require that some
traditional assumptions are changed regarding the value
attributed to work predominantly carried out by women".
12. APPENDIX II
Current Situation
In the twelve years since the legislation was enacted there is no
indication that equal pay has been negotiated into the workplace to
any significant degree, as the Minister visualised, particularly
since the end of centralised bargaining.
____________________________________
| YEAR | RATIO WOMEN/MEN |
| | AVERAGE HOURLY EARNINGS|
|-----------|------------------------|
| 1973 | 0.60 |
|-----------|------------------------|
| 1974 | 0.60 |
|-----------|------------------------|
| 1975 | 0.61 |
|-----------|------------------------|
| 1976 | 0.61 |
|-----------|------------------------|
| 1977 | 0.62 |
|-----------|------------------------|
| 1978 | 0.64 |
|-----------|------------------------|
| 1979 | 0.66 |
|-----------|------------------------|
| 1980 | 0.68 |
|-----------|------------------------|
| 1981 | 0.68 |
|-----------|------------------------|
| 1982 | 0.68 |
|-----------|------------------------|
| 1983 | 0.68 |
|-----------|------------------------|
| 1984 | 0.68 |
|-----------|------------------------|
| 1985 | 0.68 |
|___________|________________________|
The number of cases taken peaked after the Act was implemented, fell
sharply, and only now is increasing to any degree.
The narrow interpretation of equal value contributed to the fall-off
of cases and perhaps this problem is best illustrated in the "greater
than Equal" decisions in Guinness v Murtagh (DEP 11/83) and Telecom
Eireann v 29 females (DEP 6/84).
The Labour Court has been inconsistent in its attitude to the
legislation, and clearcut and unambiguous case work has not evolved
over the period since 1974.
13. APPENDIX II
If we accept that we have not acted in any way consistently with the
spirit which guided the legislators in framing the Act then can we be
entirely satisfied with how the case work has evolved over that
twelve years?
We believe in this particular case the Equality Officer has disturbed
some traditional assumptions, after a full and thorough
investigation, and in so doing has contributed to the evolving of a
much needed change of attitude in Irish society.
That obviously is of major concern to the employers and the FUE,
because if this recommendation is upheld the FUE will no longer be
able to operate its "not an inch" policy on equal pay. That issue is
at the heart of this appeal.
14. APPENDIX II
Points of Appeal
The notice of appeal from the FUE on behalf of the company we have
already commented on because of the manner in which it has been
presented.
At this point we would like to consider some of the specific points
put forward by the company.
1. The company contend that the Equality Officer erred in law and
in fact in holding that the company was discriminating in rates
of pay within the meaning of the Act.
This we feel, is merely an opinion of the company, and without
greater elaboration it is very difficult to comment on.
2. The company contend that neither the Equality Officer nor the
Court have any power to award arrears of pay. To this point we
would have to refer to the Minister for Labour's contribution
quoted earlier which states:
"a woman employee's entitlement to equal pay shall date from
a date up to three years before the date on which her case
was referred to the Equal Pay Officer".
The question of whether or not a power exists to award arrears of pay
does not arise - we have an entitlement to the arrears built into the
Act itself.
15. APPENDIX II
3. Points 3 - 8 inclusive, of the grounds of appeal are concerned
with the manner in which the Equality Officer conducted his
investigation. In paragraph 17 of EP10/1986 the Equality
Officer states:
"I have, therefore, investigated each of the jobs performed
by the women and as many of the jobs performed by the
company's male operatives as was necessary to assist me in
considering the case".
Considering this statement, and also Section 6(3) of the
Anti-Discrimination (Pay) Act, 1974, which states:
"An equal pay officer may provide for the regulation of
proceedings before him in relation to an investigation by
him under this Act",
we do not see how the case outlined by the company can be
sustained.
4. In points 9, and 14, the company express dissatisfaction with
the Equality Officer's interpretation of clause 3(c) of the Act,
stating particularly that he failed to take a narrow
interpretation.
Once again this is at variance with the intention of clause 3(c)
which was spelt out by the Minister for Labour during its
introduction as follows:
16. APPENDIX II
"Section 3(c) is for the purpose of widening the scope of
the Bill .... The demand is not restrictive, it is the
reverse, in that it extends it".
We would put it to the Court that the Equality Officer has
correctly interpreted the Act.
5. In points 10 to 13, inclusive, the company is asking the Court
to reject that which the Equality Officer has found to be valid
and to accept that which the Equality Officer, as a result of
his investigation, has rejected.
6. In point 16 the company state that the Equality Officer was
incorrect in importing into the Act, an implication that the
terminology used in Section 3(c) is derived from the practise of
job evaluation. This statement is totally at variance with not
only the intention placed on record by the Minister for Labour
at the time of the Act's introduction, but also with the report
of the Commission on the Status of Women whose authors included
a senior official of the FUE.
17. APPENDIX II
Concluding Statements
As we stated at the outset, we view this case with great seriousness.
While a response could be made to each of the thirty two listed
points, we feel, that as we have shown, they do not merit that
response. The points as presented show a wilful lack of
understanding of why we have legislation on our Statute Books to
ensure equal pay.
We would put it to the Court that the Equality Officer's
recommendation shows by its presentation that a very careful and
detailed investigation was conducted into this dispute. It is clear
that consideration was given to all points of view on the many issues
involved, including a detailed examination of the Anti-discrimination
(Pay) Act, 1974, itself.
At the outset we expressed our belief that this case is at the heart
of the whole equal pay area. Employers don't want to pay more money
to workers, and in particular they don't want to pay it to women
workers. Recent Equality Officer recommendations in Toyota Motor
Distributors Limited, Krupps, and in this particular case have opened
an area of equal pay which strikes fear in the hearts of the
employers.
We can understand those fears, but cannot allow them to overthrow the
concepts of social justice which dominated the thinking of the
legislators when this Act was first introduced onto our Statute Books.
18. APPENDIX II
Our belief is totally that the arguments put forward by the FUE in
this appeal cannot and will not stand any close scrutiny. We ask
you, Chairman, Members of the Court, to submit those arguments to the
closest examination possible on the basis already stated in Pretty
Polly (Killarney) Limited v ITGWU (DEP 5/1979).
"In making its decision the Court has borne in mind that the
onus in this case lay with the Company in that the Court is
disposed to allow the judgement of the Equality Officer to
stand except where the Company succeeds in convincing the
Court that it should be upset".
Having done so, we have little doubt but that you will uphold this
recommendation in full.
We would therefore ask the Court to uphold the Equality Officer's
recommendation in this case, EP 10/1986.
1.
APPENDIX III
COMPANY'S FIRST SUBMISSION - LABOUR COURT
HEARING OF 19TH NOVEMBER, 1986
The issue before the Court today is the appeal by the company against
the Recommendation of the Equality Officer on the grounds set out in
the company's Notice of Appeal dated the 16th September, 1986.
Attached to this Submission are the following documents:-
1. Notice of Appeal dated 16th September, 1986.
2. Copy of Equality Officer's Recommendation No. EP10/86
(File No EP85/6 dated 7th August, 1986).
3. Submission No. 1 of the company dated 22nd November, 1985.
4. Submission hand written No. 1 from ITGWU sent by Equality
Officer 12th December, 1985.
5. Submission hand written No. 2 from ITGWU sent by Equality
Officer 15th January, 1986.
6. Submission No. 2. of company dated 3rd March, 1986.
7. Submission No. 3 of company dated 10th April, 1986.
8. Submission No. 3 from ITGWU sent by Equality Officer dated
22nd May, 1986.
2. APPENDIX III
9. Letter from FUE dated 26th May, 1986 to Equality Officer.
10. Submission No. 4 from company dated 10th June, 1986.
11. Letter from FUE dated 11th June, 1986 to Equality Officer.
12. Letter from FUE dated 26th June, 1986.
13. Copy of Labour Court Determination No. DEP1/86 Toyota
Motors and B Kavanagh.
14. Copy of Hayward v Cammell Ship Builders as reported in
(1986) IRLR 287.
15. List of Claimants as appended to Equality Officer's
Recommendation.
16. Names of male comparators as appended to Equality
Officer's Recommendation.
17. Copy of Murphy & Others v An Bord Telecom Eireann, High
Court, (1986 ILRM 483, Keane J).
18. The Irish Constitution, J M Kelly, Second Edition, Pages
212-214.
BACKGROUND
The claim involves a comparison of 56 named female employees who are
employed in the company's making up department with 9 named male cone
winders, 2 named male cloth inspectors and 2 named male packers.
The company had previously rejected the union's claim on the grounds
that the work of the claimants was not equal to that of the named
3. APPENDIX III
comparators under Section 3 (2) (a) (b) or (c) of the Anti-
Discrimination (Pay) Act 1974. The grounds on which the company
argued that the claimants were not entitled to equal pay under the
provisions of the Act are set out in detail in the various
submissions which were presented to the Equality Officer and which
form part of this submission to the Court.
The company's rates of pay are rates for the job and are not based on
the sex of the individual holders of the jobs.
THE COMPANY'S OPERATION
The company makes towels, small towelling items, such as bar mats,
bath robes, sheets and pillowcases. It produces high quality items
to customers' individual specifications, principally for a highly
competitive export market. It is not engaged in the mass production
end of the market.
The company's process may be summarised as follows. It commences
with the purchasing in of undyed yarn which is rewound on special
cones by cone winders (pre-winders) for dying to the colour specified
by the customer.
When dyed, the yarn is rewound onto appropriate cones for the weaving
operations by cone winders (after winders). After weaving (which
operations are not involved in this claim), the cloth is inspected by
cloth inspectors who make the final detailed inspection for quality
and quantity before the cloth goes to the making up department.
In the making up department, the cloth is made up into the required
items. The work in the making up department consists of cutting out,
sewing, cutting, folding, some minor inspection, embroidery, shrink
wrapping and packing.
4. APPENDIX III
The products are packed in accordance with the customers'
requirements and labelled according to their destination. They are
then sent to the warehouse department for despatch. A detailed
description of the processes relevant to the instant case is given in
the company's submission to the Equality Officer, of 22 November
1985, attached to this submission.
THE COMPANY'S CASE
As already stated the company has made detailed submissions to the
Equality Officer and they form part of this submission to the Court
and must be read in conjunction with this submission. Specifically
the company has set out 32 grounds of appeal against the Equality
Officer's Recommendation. Ground No. 32 specifically asks the Court
to give reasons for its determination and we would request the Court
to have regard to this ground. For the purposes of clarity and to
avoid repetition, the grounds of appeal may be sub-divided into the
following groups. However the Court should note that some of the
grounds of appeal may logically fall into more than one of the
following sub-groups.
It is therefore proposed that we should deal in detail in this
submission with the following major heads of appeal, reserving our
rights to make further submissions on these or other grounds of
appeal:
(a) Interpretation of Section 3(c): Grounds of appeal: Nos.
9, 10, 11, 14, 16, 17, 18, 19, 20, 22 & 23.
(b) Group claims: Grounds of appeal Nos. 3, 4, 5, 6, 7 & 8.
(c) Definition of remuneration for the purposes of the Act:
Grounds of appeal 15, 24, 27 and 28.
5. APPENDIX III
(d) The facts of the case: Grounds of appeal 1, 2, 12, 13,
18, 19, 25, 29 & 30.
(e) Use of employees not named as either claimants or
comparators: Grounds of appeal 20 & 21.
(f) Effect of clause 2(3) of the Act: Grounds of appeal 25,
26 and 30.
(g) Power to award arrears of equal pay: Grounds of appeal
2.
THE NATURE OF THE CLAIM
It is important to note that no claim has been made in the present
case that the women workers involved and the comparators perform
the same work, that is to say, Section 3(a) of the Act has not
been used by the union in their claim nor has Section 3(b) of the
Act been used, that is to say there is no claim that the work is
of a broadly similar nature or that any differences are of a minor
nature or occur infrequently. Therefore, the only case which the
company has to answer (and that has been acknowledged both by the
union and by the Equality Officer) is in respect of an entitlement
to equal pay for like work as defined by Section 3(c) of the 1974
Act.
INTERPRETATION OF SECTION 3(C)
Section 3(c) of the Act defines like work in the following terms:
"where the work performed by one is equal in value to that
performed by the other in terms of the demands it makes in
relation to such matters as skill, physical or mental effort,
responsibility and working conditions".
6. APPENDIX III
The Court is asked to note that the word "value" has not appeared
in this Section without qualification. Had it done so, it would
have given rise to great difficulty in ascertaining its meaning.
Would it, for example, mean the value to the employer or the value
of the work if the worker offered his or her labour on the open
market? However, the section is not in that form and the concept
of value is tied to the "demands" made by the work.
It is perhaps true that the particular aspects of demands which
are then mentioned are not all that readily visible as having
anything to do with the concept of "value". However, it is
obvious that both skill and responsibility - two of the four
criteria - are clearly related to the value of the work. A more
skilful worker is probably more valuable. A worker carrying a
greater responsibility is also more valuable.
Having examined the conclusions of the Equality Officer set out in
Paragraphs 14-17 of his Recommendation, it is with the greatest
respect to him and understanding the difficult task that he had
that we must say that he is seriously in error. He has, in
effect, chosen to ignore the language of the section in favour of
his own adopted view that he should decide whether the work
"warrants the same rate of remuneration". This is in conflict
with the decision of the High Court (Keane J) in Murphy and Other
v An Bord Telecom (a copy of which judgement is attached to this
submission).
The company has the following comments to make in respect of the
conclusions reached by the Equality Officer.
(a) At Paragraph 14 he says that "it does not necessarily or
simply mean work that is equally demanding". It is clear
in fact that the Act does say work that is "equally
demanding". Clearly the Equality Officer is in error in
this interpretation, which is in conflict with the views
of Keane J in Murphy and Other v an Bord Telecom Eireann,
especially as reported on page 486.
7. APPENDIX III
(b) He states that the meaning of Section 3(c) as a whole
means work that warrants the same rate of remuneration in
terms of the demands that it makes upon the person who
performs it. Again, clearly the Equality Officer is in
error. Section 2 (1) of the Act gives the right of equal
pay for people employed on like work: those are the people
who are entitled to the same rate of remuneration.
It is simply illogical to begin, as the Equality Officer
does, with the contention that the people are entitled to
the same rate of remuneration without any assessment of
the essential question required before they get that
entitlement, namely, that they be employed on like work.
At Paragraph 14, while acknowledging, at least in part,
that the company's contention that like work is based on
demands, he himself entirely and completely ignores the
concept of "demands" as far as the particular workers are
concerned. It is clear from the judgement of Keane J,
cited above, that a comparison is required so as to show
that "the two categories of work are equal in value".
(c) In carrying out the analysis at Paragraph 16, he says that
"it is appropriate to consider whether there is any
material difference between each of the jobs in the range
performed by the women and each of the jobs in the range
performed by the company's male operatives which justifies
a difference in their rates of basic pay". In fact he did
not carry out this analysis at all. Furthermore it is not
the analysis that he was asked to carry out by either side.
8. APPENDIX III
He was in fact asked to compare the work performed by the
female operatives named in the claim with those of the
named male operatives. This he clearly failed to do.
(d) The analysis he actually conducted at paragraph 17 is
defective in several basic respects. Mr. McMahon was not
one of the named male comparators and we will deal with
this and the appropriateness of Ms. Keating, at a later
stage. He carried out an utterly incorrect and distorted
comparison by choosing to compare one element only of the
pay of Mr. McMahon.
The company argued to the Equality Officer that Section 3(c) must be
narrowly interpreted. Indeed the Equality Officer seemed to accept
this argument in principle but yet to totally ignore it in his actual
findings.
The company would argue to the Court, as it did to the Equality
Officer, that where an Act such as the Anti-Discrimination (Pay) Act
imposes statutory limitations on the freedom of contract which is
inherent in the employer/employee relationship, that statute and all
its sections must be narrowly interpreted. The company would argue
that the Equality Officer cannot import into any section of the Act,
words which are not present nor can he imply that the legislature
intended that particular words be read in the context of any usage
other than their normal usage. Again, to quote Mr Justice Keane,
"the words used in a statute must be construed in their ordinary and
natural meaning". So construed, there is no ambiguity in the
expression 'equal in value' and it cannot apply to the circumstances
in the present case. No doubt, the words should not be used so as to
require a mathematical exactitude of equality, having regard to the
statutory context in which they are used. It is not, however,
permissible for the court to construe the language used so as to deal
with a particular situation with which the legislature has manifestly
not dealt.
9. APPENDIX III
The Equality Officer argued that the phrases "skill, responsibility,
etc" used in Section 3 (c) are phrases which derive from job
evaluation and that therefore they should be interpreted having
regard to job evaluation. The Court must reject this concept. The
words "skill, responsibility etc" can only be interpreted in their
ordinary normal usage. Likewise, that whole section must be read as
one. The Equality Officer simply cannot separate "equal in value"
from "demands"; nor can he separate "demands" that part of the
section which relates these demands to such matters as skill,
physical or mental effort, responsibility and working conditions.
The Equality Officer argued that the measure of equal in value was
that they warranted equal remuneration. Clearly this is wrong. The
Act is clear in that the work must be equal in value in the terms set
out in paragraph 3(c). Nowhere in the Act can there be found support
for the Equality Officer's contention that equal in value means
warranting the same remuneration. In simple terms, the Equality
Officer has put the cart before the horse. Work that is equal in
value, having regard to the factors mentioned in 3(c) warrants equal
remuneration. The opposite is not true and to suggest that it is, as
does the Equality Officer, is perverse and against any reasonable
interpretation of the Act and particularly Section 3(c).
The Court is asked to acknowledge that Section 3(c) must be read
having regard to the normal rules of statutory interpretation which
can be summarised as follows:-
1. That the words are given their ordinary meaning.
2. That words not mentioned in the statute cannot be imported
into the statute.
3. That the words in the statute cannot be read in the light
of their meaning in job evaluation exercises, but as
already stated, only in the light of their ordinary
meaning.
10. APPENDIX III
Having regard to all of this, the Court is therefore asked to confirm
that in order for a claim under Section 2(1) to be successful, it is
necessary for the Equality Officer to find that there is like work as
between the named claimants and the named comparators. If that claim
is based on like work within the meaning of Section 3(c), the
Equality officer must carry out an assessment of the jobs of both the
claimants and the comparators taking account of the factors mentioned
in the definition of 'like work' in Section 3(c), before any finding of like work can be made upon which to establish an entitlement under
S.2(1). The Court is further asked to confirm that the Equality
Officer was wrong in arriving at his recommendation without carrying
out such an investigation.
ON THESE INITIAL GROUNDS, THE COURT IS ASKED TO OVERTURN THE EQUALITY
OFFICER'S RECOMMENDATION.
THE TREATMENT OF GROUP CLAIMS
As the Court will note, the claim made before the Equality Officer
was in respect of 56 named female workers, who in effect claimed that
their work was equal in value in accordance with Section 3(c) with
that of 13 named males. It seems on the surface that the union
assumed that the 56 named claimants were all carrying out work which
was equal inter se.
It seems however that the union did not necessarily take the same
position in respect of the named males. Indeed in the course of the
investigation, very little emphasis was placed by either the Equality
Officer or indeed the union on the duties of the cloth inspectors.
Even in the course of a fairly cursory examination of the various
jobs by the Equality Officer, it is our understanding that he did not
look at the work of the cloth inspector at all, as it appeared that
the union had conceded that their work was of higher value than that
of the claimants and that the claim in this respect was not well
founded.
The major point, however, that the company would make here is that
there were two avenues available to the Equality Officer.
11. APPENDIX III
Either (a) he could have examined this claim having regard
to the provisions of the Act, not as a blanket claim but
on the basis of 56 separate claims against 13 separate
comparators.
Or (b) the Equality Officer could have investigated the
case as a group claim, involving multiple claimants and
multiple comparators.
He manifestly did not do the former. Nor did he do the latter as he
failed to follow the proper procedures for group claims. These
require the Equality Officer as a first step to establish that the
claimants are engaged on like work inter se and that the comparators
are also so engaged.
(a) FIRST OPTION
The provisions of the Act do not give collective rights to a group of
workers to claim equal pay (unless they are all engaged on like work
inter se but give individual rights to individual employees).
Section 2(1) of the Act states:-
"Subject to this Act, it shall be a term of the contract
under which a woman is employed in any place that she
shall be entitled to the same rate of remuneration as a
man who is employed in that place by the same employer (or
by an associated employer if the employees, whether
generally or of a particular class, of both employers have
the same terms and conditions of employment), if both are
employed on like work".
12. APPENDIX III
Clearly this Section refers to "woman" and "man" in the singular and
to the contract of employment, which is the basis of the individual
employment relationship. The Equality Officer, therefore, should
have treated the union's claim on behalf of the claimants as being on
behalf of 56 individual claimants claiming an entitlement to equal
pay based on work of equal value with 13 individual comparators.
Whilst acknowledging that this means that there are, in fact, 728
separate claims, this is what the Act provides for and the Equality
Officer acted ultra vires in doing otherwise than as required by the
Act.
(b) SECOND OPTION
Alternatively, if it is argued that this case involves group claims,
the Court is referred to Appendix 12 to the 1979 Court Annual Report,
pages 97-101, and specifically to paragraphs 8 and 13 - 30. These
paragraphs set out, in an explanatory memorandum for the information
of employers and employees, the method of dealing with group claims.
At paragraph 18 of that document, the Court states that in cases
where the claimants - and quite possibly those with whom they are
making comparisons are doing different work as between themselves, it
is necessary, in order to preserve individual rights, to perform
"quite a different type of investigation". The Court at paragraph 20
states that every claimant has the right to have his or her own
specific case investigated, even though he/she is an individual
member of a group investigated. Paragraph 22 to 25 provides that the
Equality Officer should examine the work to see whether they do work
which is like work as between themselves.
In addition, where there are multiple comparators, as in this case,
the "next step" is that the persons with whom the comparisons are
being made have to be treated in exactly the same way. Only after
going through these steps can the Equality Officer compare the
claimants' jobs with those offered for comparison(s).
13. APPENDIX III
In the present case, the Equality Officer failed to do this with
regard to the claimants and the comparators. At paragraph 27 of the
same memorandum, the Court said that there is a danger in dealing
with claims on a group or grade basis, that the rights of individuals
which the Act confirms could be overridden. Such a procedure is also
a protection for the employer on whom the claim is made. A
successful group claim can mean, as in the present case, costs to an
employer so high that the operation of the company can be endangered.
An employer also, therefore, has a right to strict adherence to the
terms of the Act and to the Court's own procedures in the
investigation of a claim. The Court, in its own report, gives an
example that in cases where a group claim might fail an individual or
individuals might still claim successfully. the corollary is also
true. With individual assessment of the claims in a group claim,
individual claims might not be successful.
Finally, in paragraph 28 the Court acknowledges that in practical
terms there is no way in which the work of one group or grade in
general can be compared with the work of another group or grade in
general, even though attempts have been made to do this heretofore.
The company would support this view and argue that it applies
especially in circumstances where the grades encompass several
completely different jobs, as is the situation with both the
claimants and the comparators in the instant case.
THE COMPANY, THEREFORE, REQUESTS THE COURT TO FIND THAT THE EQUALITY
OFFICER FAILED TO CARRY OUT A VALID INVESTIGATION OF THE CLAIMS ON AN
INDIVIDUAL BASIS WITHIN THE TERMS OF THE ACT AND TO OVERTURN HIS
RECOMMENDATION ON THIS GROUND.
14. APPENDIX III
DEFINITION OF REMUNERATION
Section 1 of the Anti-Discrimination (Pay) Act 1974 provides
definitions for the interpretation of that Act. "Remuneration" as
defined "includes any consideration, whether in cash or in kind,
which an employee receives, directly or indirectly, in respect of his
employment from his employer". The 1974 Act, in effect, brings into
our legislation the requirements of Article 119 of the Treaty of
Rome, which uses a similar definition of remuneration in relation to
the entitlement to equal pay.
The Equality Officer in this case has decided - wrongly, the company
contends - that work of equal value is work that warrants "the same
rate of remuneration". The company would contend that he compounded
this fundamental error in further equating remuneration with basic
pay. Clearly that is wrong in that remuneration is actually and
unequivocally defined in the Act.
This very question has been examined by the Employment Appeals
Tribunal in the U.K. in the case of Hayward v Cammell Laird Ship
Builders Limited (1986) IRLR 287. In that case, the Employment
Appeals Tribunal held that Article 119 of the EEC Treaty should be
applied in interpretation of the term "remuneration". It further
states that Article 119 clearly does not limit pay to simply wages or
salary, but involves any other consideration whether in cash or in
kind: the very familiar concept of "the total employment package".
The Tribunal in that case held that it had to be assumed that
Parliament intended to legislate an Act so as not to be inconsistent
with the Treaty obligations and applying Article 119 therefore the
Tribunal must look at the overall package.
15. APPENDIX III
The Tribunal in the Cammell Laird case pointed out that the U.K. Act
contains no definition of "pay". The Irish legislation does; and it
is a definition entirely consistent with Article 119 of the Treaty of
Rome. There are, therefore, none of the ambiguities inherent in the
U.K. legislation. It is the company's contention that this Court
(and Equality Officer's) must interpret "remuneration" broadly as
comprising all the elements of an employee's remuneration as is
required by the 1974 Act, and not to make findings on individual
elements of the remuneration package.
The recommendation in the present case illustrates perfectly the
results of breaking up the elements of an employee's remuneration
package. The Equality Officer compared the remuneration of Mr.
McMahon and Ms. Keating. (The company wishes to make it clear that
it disputes his right to do so). In comparing their remuneration,
the Equality Officer eliminated all other consideration than basic
pay and totally ignored the fact that Mr. McMahon and Ms. Keating
were actually in receipt of exactly the same amount of total
remuneration.
It is clear, therefore, that the Equality Officer, even were he
validly comparing the remuneration of Mr McMahon and Ms Keating, was
basing his decision on an alleged inequality between their rates of
remuneration which did not, either in fact or in law, exist.
THE COMPANY, THEREFORE, REQUESTS THAT THE COURT OVERTURN THE EQUALITY
OFFICER'S RECOMMENDATION ON THE FURTHER GROUND THAT IT IS BASED ON AN
INCORRECT INTERPRETATION OF REMUNERATION, AS DEFINED IN THE ACT AND
IN ARTICLE 119 OF THE TREATY OF ROME.
16. APPENDIX III
INTRODUCTION OF UNNAMED CLAIMANT AND COMPARATOR
The company would strongly argue that the Equality Officer was
seriously in error in importing into the claim an unnamed claimant
and comparator. The case before him for recommendation was that an
equal pay entitlement existed, by virtue of there being like work
under Section 3(c) of the Act, as between the named claimants and the
named comparators. The Equality Officer erred first in incorrectly
interpreting Section 3(c) and the term "remuneration" and second in
making a comparison between two people not concerned in the present
case. He further erred in the facts of his comparison between these
two employees.
The company would argue that the Equality Officer, in his acceptance
of the proposition that the company acknowledged that there was like
work as between all employees paid the same basic rate of pay, erred
in equating the work of the cleaner, Mr McMahon, with that of the
named comparators and in equating the work of Ms Keating with that of
the named claimants.
THE COURT IS, THEREFORE, REQUESTED TO OVERTURN THE EQUALITY OFFICER'S
RECOMMENDATION ON THE FURTHER GROUND THAT HE ACTED ULTRA VIRES IN
IMPORTING INTO THE INTERPRETATION OF 'LIKE WORK' AN UNNAMED CLAIMANT
AND AN UNNAMED COMPARATOR.
THE FACTS OF THE CASE
The next issue on which the company would appeal this ground, is on
the facts of the case. We would repeat once again that the Equality
Officer initially should have examined the work of the claimants and
the comparators inter se and comply with the guidelines set out by
the Court in examining group appeals.
17. APPENDIX III
We would further argue that the Equality Officer should then have
carried out an objective assessment of the work of the claimants and
of the comparators, having regard to the factors set out in Section
3(c) of the Act in respect of each of the claimants and in respect of
each of the comparators.
The Equality Officer made, at best, a cursory examination of the
various jobs. He carried out one brief tour of the factory in order
to give him an idea of the range of jobs involved. At the request of
the company, which was concerned that the Equality Officer had
carried out no proper inspection of the work upon which to found an
adequate assessment of the jobs and upon which the company's
arguments could be evaluated, he carried out a further brief
inspection of the work.
Furthermore, the Equality Officer in his recommendation made no
reference even to these cursory examinations, nor did he attempt to
make any evaluation of the relative value of the work of the
claimants and of the comparators. In so doing, he was ignoring the
evidence contained in the company's submission, which it is confident
will be upheld by a detailed assessment of the work involved in the
various jobs involved.
The company is satisfied that such an assessment will show
1. that the claimants are not carrying out work of equal
value inter se.
2. that the comparators are not carrying out work of equal
value inter se.
3. that none of the claimants carry out work of equal value
having regard to the factors set out in 3(c) with any of
the comparators.
18. APPENDIX III
It is the company's contention that any reasonable, objective
evaluation of the work would show that none of the claimants are
entitled to equal pay with any of the comparators. The union in the
course of its arguments to the Equality Officer provided what was
allegedly an objective job evaluation of the jobs. As the company
pointed out to the Equality Officer, it was carried out by an
Industrial Engineer who had not visited the plant for some years. At
the time when he did so, it was to carry out an examination of bonus
rates. At no time did he visit the plant for the specific purpose of
carrying out an objective assessment of the work using the criteria
of S. 3(c) of the Act. Neither, the company contends, did the
Equality Officer carry out such an assessment of the work of the
claimants in relation to that of the comparators named by them.
On matters of fact, therefore, the company provided evidence to
justify its denial of equal pay to the claimants. The 1974 Act
places no onus of proof on an employer to show that there is no
entitlement to equal pay where a claim to that effect is made. The
company contends that the normal onus of proof lies on the party
making the claim.
THE COMPANY, THEREFORE, REQUESTS THE COURT TO UPHOLD ITS CONTENTION
THAT THE CLAIMANTS FAILED TO PROVIDE ANY EVIDENCE OF AN EQUAL PAY
ENTITLEMENT, RELYING ON ALLEGATIONS WHICH WERE NOT PROVEN AND WHICH
WERE IRRELEVANT, AND TO FIND THAT THE EQUALITY OFFICER ERRED IN NOT
REQUIRING PROOF OF THE ALLEGATIONS MADE BY THE CLAIMANTS AND IN NOT
MAKING AN ASSESSMENT OF THE VALUE OF THE WORK ON THE FACTS OF THE
CASE IN THE LIGHT OF A CORRECT INTERPRETATION OF SECTION 3(c) OF THE
ACT.
19. APPENDIX III
PRIOR DECISION ON POINTS OF LAW RAISED BY THE COMPANY
Before proceeding to the examination of the evidence relating to the
facts of this case, the company believes that it is first incumbent
on the Court to deal with the points of law raised by the company in
its appeal against the Equality Officer's recommendation. The
company's belief is reinforced by the judgement of Blayney J in the
Polymark case. In the belief that the Court's decision on these
points of law will be favourable to its case, the company has
attached to this submission copies of its detailed submissions on the
work involved in the various jobs relevant to the claim. The company
will supplement these submissions with further information as
required by the Court.
ONUS OF PROOF
The union's case on behalf of the claimants in relation to the
alleged equal value of the work is based on two grounds: first, a
general assertion of the existence of discrimination within the
company and second, the points awarded by its Industrial Engineer to
the various jobs in his job evaluation exercise carried out some time
ago (and referred to previously above).
On the first ground, the company denies that it discriminates against
women in its pay structure. In support of this allegation, the union
introduced the cases of Ms Keating and Mr McMahon. In fact, Ms
Keating and Mr McMahon are paid the same gross remuneration.
20. APPENDIX III
Because Mr McMahon* works in the make-up department, in which the
claimants and Ms Keating all work, his pay is linked to theirs. The
claimants and Ms Keating are all on direct bonus, as they are
production workers. Mr McMahon, being a cleaner, is on an indirect
bonus, calculated to link his remuneration to remuneration in the
make-up department generally. His gross pay is the same as that of
the claimants. The union's allegation of general discrimination on
grounds of sex is, therefore, shown to be unfounded.
The second ground on which the union claimed an entitlement to equal
pay was the result of the job evaluation carried out by its
Industrial Engineer (previously referred to in this submission). The
company has already made it clear that it disputes the figures
arrived at by the union. That exercise, inter alia, awarded equal
points only to winders and to make-up department operatives (on the
assumption that the latter were performing identical jobs). Despite
its reservations on the validity of the whole exercise for the
present purpose, the company considers that the findings put forward
deriving from it are relevant in the context of the Equality
Officer's findings (paragraph 17 of his Recommendation) in which he
equates the women claimants with a male cleaner. On the union's own
scoring, the cleaner was awarded 140 points. This is a very far cry
from 181 points awarded to the claimants in the make-up department.
If the Equality Officer was upholding the union's case as such, (and
this is not clear from his Recommendation) this work cannot be
described as equal in value. If the Equality Officer is actually
going further than the union itself, he cannot do so without the
clearest evidence and without saying so.
The 1974 Act gives entitlement to equal pay for like work. In an
equal value claim, the work must be equal in value. The Act cannot
be construed as applying to work which is more or less equal. In
support of this contention, the company would draw the attention of
the Court to the judgement of Keane J, in Murphy & Others v An Bord
Telecom Eireann (1986)ILRM 483, a copy of which is attached to this
submission.
* Agreed by both sides at hearing of 5th May, 1987, that 'Mr
McMahon' is a cleaner but does not work in the make-up department.
21. APPENDIX III
We make these points irrespective of the correctness or otherwise in
law of choosing a male comparator not named in the claim.
THE COMPANY FURTHER REQUESTS THE COURT TO OVERTURN THE EQUALITY
OFFICER'S RECOMMENDATION ON THE GROUNDS THAT THE ONUS OF PROOF THAT
AN EQUAL PAY ENTITLEMENT WITHIN THE MEANING OF THE ACT OF 1974 WAS
NOT DISCHARGED BY THE CLAIMANTS.
DEFENCES UNDER SECTION 2(3)
The next ground on which the company would appeal to the Court to
overrule the Equality Officer is his lack of regard to the defences
which are available to a company under Section 2(3) of the Act.
This Section states:-
"Nothing in this Act shall prevent an employer from paying
to his employees who are employed on like work in the same
place, different rates of remuneration on grounds other
than sex".
Clearly the Equality Officer had no regard to this Section of the
Act. It is not referred to in his Recommendation and we believe that
if he had carried out a proper and full evaluation of the work that
he would have found that they were not performing like work. The
company stated in its defence of the claim that, if like work were
found to exist, it would defend the differences in remuneration on
grounds other than sex, i.e. that they were rates for the job and
that they reflected the value of the work.
22. APPENDIX III
The company argued that under Section 2(3) of the Act, if the work in
question was found to be equal in value in terms of Section 3(c),
that did not mean an automatic entitlement to equal pay. For such an
entitlement to be found to exist, the differences in remuneration had
to be found to be based solely or mainly on the sex of the
jobholders. Under Section 2(3), an employer may raise the defence
that differences in the pay of employees of different sexes arise for
reasons other than sex, such as economic circumstances, legitimate
business purposes and market forces.
THE EQUALITY OFFICER FAILED TO HAVE REGARD TO THIS DEFENCE ON THE
PART OF THE COMPANY AND THE COURT IS REQUESTED TO OVERTURN HIS
RECOMMENDATION ON THIS FURTHER GROUND.
EQUALITY OFFICER'S TREATMENT OF THE BONUS SCHEME
The next ground of the company's appeal centres around the Equality
Officer's Recommendation in relation to bonuses. As we have already
pointed out, total remuneration must be considered and one cannot
separate the various elements making up the total employment package
concept. The Equality Officer, in his Recommendation, made two
separate recommendations in relation to equal pay: one, recommending
equal basic pay and two, recommending that the claimants were
entitled to the same starting point for bonus payments. The company
would argue that having regard to the definition of remuneration of
the Act, the Equality Officer is not empowered to separate the
various elements of the remuneration package and that it is quite
irrelevant how bonuses are calculated, provided total remuneration is
equal for those engaged on like work.
The company may have been unwise in acceding to the union's request
for differing bonus arrangements to apply in the make-up department.
A mere difference in arrangements, however, does not constitute
discrimination within the meaning of the 1974 Act.
23. APPENDIX III
The Court is requested to recognise that, where a response is made by
a company to a request for improvements in the remuneration of
lower-paid workers, such a response does not constitute
discrimination merely because such lower-paid workers happen to be of
one sex.
The effect of the Equality Officer's Recommendation is curious and at
variance with the legislation. It is to:
(a) suggest that the bonus for the female claimants be altered
to bring them into line with that of the males in relation
to starting point, despite the fact that this would create
inequality in the terms of the male workers' remuneration,
given the fact that the female workers have an advantage
over the male workers in relation to the finishing point
for bonus earnings.
The Equality Officer appears to suggest further that the
finishing point at which the male workers concerned in
this claim should earn bonus should be reduced in line
with that of the female workers, despite the fact that no
claim to this effect was made. This may seem convoluted
and indeed in our reading of the recommendation it is
rather convoluted logic.
(b) The nett effect of what the Equality Officer is saying to
the company is that it must bring part of its bonus in
line, despite the fact that this would create inequality
elsewhere in its bonus. When this inevitable result
ensues, the company must then address the inequality
created by the Equality Officer's recommendation and bring
the unequal bonus in line with that of the claimants.
Surely the 1974 Act was never meant to create inequalities
in pay as between men and women.
24. APPENDIX III
(c) The nett effect of the Equality Officer's Recommendation
is a classic case of illogical leap frogging, which must
be rejected out of hand by the Court.
THE COURT IS REQUESTED TO FIND, THEREFORE, THAT SUCH DIFFERENCES IN
THE COMPANY'S BONUS SCHEME AROSE FOR INDUSTRIAL RELATIONS REASONS
UNCONNECTED WITH THE SEX OF THE WORKERS.
POWER TO AWARD EQUAL PAY
The company in paragraph 2 of the Notice of Appeal states that
neither the Equality Officer nor the Court has any power to award
arrears of pay and that such power resides if anywhere, only in a
Court of law.
This we acknowledge is a difficult question, but in our view the Act
is somewhat unclear on the matter. Assuming for the purposes of this
argument that males and females are entitled to equal pay under
Section 2(1) or Section 4 of the Act, then one must examine certain
other sections of the Act.
The right to equal pay is derived from Sections 2 and 4. The
combined effect of these sections, in particular Section 4, is that
there is included (by law, if not in fact) in the contract of
employment of a woman an entitlement to equal pay where she is
performing like work with a man or men in the same place for the same
employer and there are no reasons, other than those of her sex, why
she should not be paid on an equal basis to such man or men. The
ordinary consequence in law of such a statutory provision is that a
person who has such a contract of employment, can sue upon it in the
ordinary Courts. Such a person can bring a claim as Plaintiff in a
Court having appropriate jurisdiction and nothing in the Act purports
to oust that jurisdiction.
25. APPENDIX III
Section 7 of the Act confers certain powers where there is a dispute
between an employer and an employee in relation to the existence or
operation of a term included by virtue of Section 2 in a contract of
employment or implied by virtue of Section 4 in the terms and
conditions of employment. That Section provides that either party
may refer such a dispute to an Equality Officer, but it does not say
that the employee may not bring an action in the ordinary Courts.
The company believes that such a provision is necessary to replace
the jurisdiction of the ordinary Courts or, alternatively, to give
such jurisdiction to another body. The terms of Section 7 are
somewhat vague insofar as they refer to the existence or operation of
an equal pay clause, but are even more vague when they come to the
power given to an Equality Officer to issue a Recommendation and to
the Labour Court to make a determination thereon. A Recommendation
suggests that the Equality Officer's power extends only to a finding
that an entitlement to equal pay exists and to a recommendation that
there should, accordingly, be a change in the rate of remuneration.
Section 7 is important since the powers of the Labour Court itself
under Section 8 arise only after a recommendation has been given
under Section 7. In other words, the Labour Court cannot make a
determination under Section 8 unless there has been a dispute under
Section 7(1) and a Recommendation has been made by an Equality
Officer thereon. Therefore, one must consider whether either the
Labour Court or an Equality Officer has any power to do other than
make a finding that an equal pay entitlement exists. This is
obviously a difficult question.
The company would argue that neither the Court nor the Equality
Officer has got such a power. As we have already pointed out, the
only thing that can be referred to an Equality Officer is a dispute
as to the existence or operation of an equal pay clause. The first
reference to arrears of remuneration occurs in Section 8(5) which is
no more than a limitation provision. It imposes a three-year time
limit on the payment of arrears, but that time limit operates "in any
proceedings brought by a person to recover arrears of remuneration".
26. APPENDIX III
This is quite different from the language of Section 7. Clearly,
proceedings to recover arrears are not the same thing as a reference
of a dispute under Section 7 (1). The word proceedings is ordinarily
used to describe a legal action in the Courts. A further point
occurs in relation to Section 7(2) under that provision the Minister
may refer the matter of the failure of an employer to comply with an
equal pay clause, to an Equality Officer and it is thereupon to be
dealt with as if it were a reference under Sub-section (1) as a
dispute by an employee. Again, although the procedure under Section
7(1) is applied to the Minister's reference, the word "proceedings"
is not used. The other reference to arrears of remuneration occurs
in Section 9 where an employer is being convicted of an offence under
that Section. The Court convicting him may impose a fine equivalent
to the arrears of remuneration if it is "satisfied that a person
would be entitled to recover in a civil action, arrears of
remuneration".
This, like the reference to proceedings in Section 8(5), strongly
suggests that the power to recover arrears of remuneration resides in
Courts established under the Constitution. It seems also that the
power to award a sum of money under a contract which is the net
effect of an award of arrears under this Act, is a power being
exercised which has all the characteristics of a judicial power as
defined in a number of cases. We would at this point refer the Court
to Kelly on the Irish Constitution Second Edition Pages 212-214 which
we have attached hereto. To quote one case, Lynham v Butler
(1933)IR74:
"In relation to justifiable controversies of the Civil
class, the judicial power is exercised in determining in a
final manner by definitive adjudication according to law,
rights or applications in disputes between citizens and
citizen or between citizens and the State or between any
parties whoever they may be and in binding the parties by
such determination which will be enforced if necessary,
with the authority of the State".
27. APPENDIX III
There can be little doubt that the power to award arrears of pay in
the current issue is a judicial power. It can, therefore, under our
Constitution, be exercised by a body other than the Courts set up
under the Constitution only if it comes within Article 37 and is a
limited function or power of a judicial nature. In view of the
manner in which the Courts have decided that laws must be interpreted
in order to render them compatible with the Constitution, it is our
view that this Statute must be interpreted in a manner which leans
against the idea that it confers such a power to the Labour Court.
The company is further fortified in its view by the fact that
specific powers are given to the Labour Court, (in line with those
given to the Employment Appeals Tribunal) in the Unfair Dismissals
Act, 1977, under Section 10 of the Act of 1974 in relation to claims
of dismissal arising from the making of an equal pay claim, to direct
an employer to pay such compensation as the Court considers
reasonable in the circumstances.
In the present case, the Act does not purport to give any express
power to the Labour Court to make an award in respect of arrears of
remuneration. The provisions of Section 8 and 9 suggest that any
such power resides in the ordinary Courts. It is, therefore, our
view that the Labour Court has no such power; nor, of course, has the
Equality Officer.
We therefore take the view that if (despite the arguments which the
company has set out in support of its appeal, and having carried out
a proper and full investigation, having regard to the limitations
imposed on the Court in respect of group claims and in respect of the
provisions of Section 3(c)) the Court were to find that one or more
of the claimants had an equal pay entitlement under Section 2(1) or
Section (4), its determination could not incorporate any award of
arrears.
28. APPENDIX III
CONCLUSION
In conclusion, therefore, to summarise our arguments we would make
the following points to the Court. The Equality Officer's
Recommendation must be overturned and a determination issued by this
Court that the claimants are not entitled to equal pay for the
following reasons:
(A) The Equality Officer erred in law in the interpretation he
placed on Section 3(c) of the Act.
(B) On the basis of any objective evaluation of the jobs, it
can be shown that the claimants are not carrying out equal
work in accordance with the provisions of Section 3 inter
se.
(C) That further on any such objective evaluation, it can be
shown that the comparators are not carrying out equal work
inter se.
(D) That further on the basis of an objective evaluation
having regard to the factors set out in Section 3(c), the
Court must find that none of the claimants has a right to
equal pay with any of the comparators.
(E) That in the unlikely event of the Court finding that any
of the claimants has a right to equal pay, the Court has
no power to make an award of arrears of such pay.
Therefore, we would respectfully request the Court to overturn the
Equality Officer's Recommendation and to determine that the named
female claimants are not entitled to equal pay having regard to the
provisions of the 1974 Act.
29. APPENDIX III
Attached to this submission are submissions already made by the
company to the Equality Officer, which deal with the facts of the
case. The company will expand on these submissions when the Court
comes to consider the facts of the instant case.
REASONS FOR ITS FINDINGS
The Court is respectfully requested to give its reasons for its
findings on each of the points raised in this submission and appended
documents and on any further submission, on the law or facts of the
case, which may be made during the course of its investigations.
1.
APPENDIX IV
UNION'S SECOND SUBMISSION - SUBSEQUENT TO LABOUR COURT
HEARING OF 19TH NOVEMBER, 1986
Investigation Procedure
The FUE on behalf of the company have made a specific claim that the
investigation conducted by the Equality Officer was cursory.
Their own submission shows this was not so. If one extracts from
their material what actually took place, the following picture
emerges:
January 1985 - Case initiated with Company
16 July 1985 - Referred to Equality Officer
16 September 1985 - Further details from Union
22 November 1985 - Company Submission (1)
10 December 1985 - Equality Officer meeting with Union
17 December 1985 - Equality Officer meeting with Union
17 December 1985 - Preliminary work inspection by Equality Officer
3 April 1986 - Joint Union/Company meeting with Equality Officer
10 April 1986 - Second Company submission
1 May 1986 - Second Union submission
4 June 1986 - Second work inspection by Equality Officer
4 June 1986 - Joint Union/Company meeting with Equality Officer
10 June 1986 - Third submission by Company
11 June 1986 - Fourth submission by Company
12 June 1986 - Final work inspection by Equality Officer
12 June 1986 - Joint Union/Company meeting with Equality Officer
26 June 1986 - Fifth submission by Company
1 July 1986 - Third Union submission
7 August 1986 - Recommendation issued
Analysed, the situation is that over a period, a little over twelve
months, the Equality Officer had:
Five Company submissions
Three Union submissions
One separate meeting with each party
Three joint meetings with both parties
Plus three workplace inspections
2. APPENDIX IV
The Equality Officer evidently had more than enough information. The
FUE problem is not that there was a cursory investigation, but that
the Equality Officer rejected their points, after due consideration.
The FUE also claimed the work inspection by the Equality Officer was
"cursory at best". No complaint was made to our knowledge to the
Equality Officer by the FUE to this effect, and indeed the FUE
submission itself indicates an acceptance of the level of work
inspection.
It must also be noted that each of the three work inspections was
followed by a joint meeting with the parties and the Equality
Officer. Ample opportunity was given to both sides to indicate any
dissatisfaction or put forward specific points, and it seems this
issue only arises in hindsight.
3. APPENDIX IV
Wording of Recommendation
Another point made by the FUE relates to the wording of the
recommendation itself.
In that context we make the point that in Howmedica (Dep: 3/1986) we
asked the Court to determine as a preliminary point what the powers of
the Equality Officer actually are. We were told the Equality Officer
had sole discretion as to procedure in an investigation, subject to the
specific provisions of the Act. They told us an Equality Officer could
bring in separate recommendations for each claimant, if it was felt
desirable. That discretion must also cover the manner of writing
recommendations.
The Equality Officer in this case has departed to some degree from past
practice in the way he has presented this recommendation. We see
nothing wrong in that.
If one looks at the recommendation in Sections 1 to 9 he describes the
background.
In 10 he goes directly into the recommendation format, and in 11 and 12
he summarises the Union and Company cases.
In 13 he describes Section 3(c).
In 14 he argues what equal value means. He states his belief that -
"3(c) as a whole means work that warrants the same rate of remuneration
in terms of the demands that it makes upon the persons who perform it".
He explains his thinking in (1) - "it is usual practice for employers to
treat jobs that are evaluated, by formal means or otherwise, as being
appropriate to the same grade, but not necessarily equally demanding, as
the same pay for pay purposes". He goes on to quote Toyota where he
made a similar argument and the Court on appeal upheld it.
This is an argument that we included in our submission and we would like
the opportunity to develop it further. We do so on page 9.
In 15 he analyses the Company's pay structure, noting all the men,
whatever the level of demand made upon them, had a common basic pay
structure. All the women were also paid a common, and lower, basic wage
rate.
4. APPENDIX IV
In 16 he goes on to consider if there were material differences between
the range of duties performed by the women as against those of the men,
or if the differentials in basic were based on an outside factor such as
sex, or a reason other than sex - such as the requirement to work shifts
In 17 he confirms he has investigated each of the jobs performed by the
women and as many of the men's jobs as he considered necessary to help
him. He also confirms looking at the history of the two different wage
rates.
It is only at this point he goes into his findings. The substance of
the recommendation up to now has been to detail the information he
sought and why he sought it. The findings are in line with Toyota, and
his reasoning there has been accepted by the Court.
He goes on to demolish the Joint Labour Committee rates claim by the FUE
as legally binding them in relation to "Females and Others" as being
non-factual. He also disposes of the FUE contention that liability to
work shifts was a reason other than sex.
There is, therefore, total logic in how the Equality Officer has
presented his considered opinion in this recommendation. One may
disagree with his conclusions, but the logic of his points must be
noted.
The Court will also have noted that the stages required under the Act
have been met by the claimants.
Stage 1 - The onus of proof of a dispute lies with the claimants - it
has been met.
Stage 2 - The Equality Officer has confirmed in 17 that he has looked a
each of the jobs of the women and as many of the jobs of the
men as needed - we refer to Harrington Goodlass Wall Limited -
46 women operatives (EP11/1980).
"It must be accepted that in this type of analytical assessment
of a number of jobs, even though the jobs held are all paid
the same rate, some jobs can be slightly higher in value than
others. For instance in a grading structure it is quite
common to find within a grading quite significant gradations
in the value of the work as between one job holder and
another".
In that context we believe the onus under Stage 2 has been
met.
5. APPENDIX IV
Stage 3 - Like work with a man must be proved. It is the Equality
Officer's task to make that decision. He must investigate the
work situation himself and that must weigh more heavily on him
than any points put by the parties. We would submit this
stage has been met in 17.
Stage 4 - The onus lies on the employer to prove reasons other than sex
That has not been proved and the Equality Officer states so.
We have referred to our view that the Equality Officer very
clearly did a thorough and extensive investigation with a mass
of material provided by the parties - he on 3 occasions
visited the Company to see work done - he met the parties
separately and together.
He himself, is finally left with the decision to make under
the Act, and this he has done in total conformity with the
requirements of the Act, in our view.
6. APPENDIX IV
Remuneration
A. The wage payment structure in this Company consists of:
a) Basic pay,
b) Skills allowance,
c) Shift allowance,
d) Bonus payment.
Items (b) and (c) are paid to certain categories only for the
specific performance of certain duties. It is interesting to note
that while shift allowance is usually paid as a percentage of the
basic rate, in this Company it is paid to men and women as a
percentage of the male basic rate.
Item (d) - bonus payments - are largely within the control of the
individual operator. Payment is made as a percentage of that
operator's basic rate in accordance with performance earned.
The common fixed denominator in the wage structure is the basic rate
- of which two exist in this Company. One for male employees, and
the other for female employees.
We do not see a claim for equal basic pay as being outside the scope
of the Act and we would point to the findings in Krups V 16 Armature
Winders (EP 8/1986).
B. On page 3 of its submission the Company states:
"The Company's rates of pay are rates for the job and are not
based on the sex of the individual holders of the jobs".
We enclose, as Appendix A, part of the Company's second submission to
the Equality Officer. This is a breakdown of the wage structure in
Lissadell and was requested by the Equality Officer. We note that it
has been excluded from the information already supplied to the Court.
This document clearly shows all jobs done by males as having a common
basic rate of #100.42 (at that time), and all jobs done by females as
having a lower common basic rate of #82.65.
7. APPENDIX IV
It also shows those Males employed in the Making-up Department, i.e.
Batching, Cleaner in Making-up, Packers, Cutters on Rolls and Sheets,
Batching and Stocking for side-hem, are paid the male basic. Clearly
there is no making-up rate as asserted by the Company.
All correspondence from the Company to the Union shows male and female
rates described as such. Details of this were presented to the Equality
Officer in the course of his investigation and were shown to the Court.
We include some examples in Appendix B. We note that this information
has been excluded from the documentation supplied to the Court by the
Company.
During the course of the investigation the Equality Officer requested
details of occasions when males and females have done the same work for
different rates of pay. In their appeal the Company have concentrated
on one specific case only - that of Mr Phil McMahon and Ms Mary Keating.
This was but one instance high-lighted to the Equality Officer.
We attach, at Appendix C, the detail which was supplied to the Equality
Officer.
The Equality Officer, in passing this information to the Company, sought
a response.
It is important to note that neither the FUE nor the Company have
refuted or denied these facts, and that at later meetings with the
Equality Officer admitted them to be true.
C. The conflicting information regarding Mr McMahon and Ms Keating can
best be clarified as follows:
Both worked as Cleaners from 18 February 1980 to 9 February 1981. He
on the male rate and she on the lesser female rate. Ms Keating then
moved to the Making-up Department where she operated on an individual
incentive scheme and increased her bonus earnings.
When she moved back to Cleaning, during an absence of Mr McMahon, she
carried her bonus earnings. Her lower basic pay, coupled with her
higher bonus earnings, did match, at that time, his higher basic pay
and lower bonus earnings. This, however, was purely coincidence. Had
her normal bonus earnings been lower her overall remuneration would
have been less than his.
8. APPENDIX IV
Onus of Proof
On page 20 of the FUE submission, reference is made to the status of the
job evaluation exercise put forward by the Union. The Union were
conscious of the fact that little progress had been made at joint and
other meetings in getting any consensus view on job descriptions and
work practices. We asked the Equality Officer if a job evaluation
exercise would be a positive rather than negative element at that stage.
He agreed and we put forward the exercise in the light of Data Products
(Dublin) Memories Limited -V- Simpson (EP 20/1978:DEP 1/1979).
The Equality Officer, in our view, took that evaluation as an item of
consideration in his own evaluation of the jobs, but went on to make his
own mind up as he is required to do under the Statute.
Within the Union submission the following point was made:
"Job evaluation is a technique which is used to determine the
relative work of a job. As such it is necessarily subjective and
such limitations result in a difficulty in proving that no margin
for error exists. It is impossible to say that if one job scores
270 points and another 265 points, that the first job is of greater
value than the second.
Because of this restriction it is common practice, in wage
negotiations following a job evaluation exercise, of grouping jobs
in grades or bands of points, which would be paid at the same rate
of pay and which would be considered equal in value".
The job evaluation revealed the claimants to be rated as less than the
Warehouse or the Packers, equal with the Winders, and greater than the
Cleaners.
The reaction of the FUE was to cast doubt on the exercise, the means
used, and whether the Industrial Engineer was on the premises within
recent times. Records show that Eugene Kearney was present at the
premises for twelve days during 1984 and 1985 as follows:
16 January 1984 22 November 1984
2 March 1984 18 December 1984
19 April 1984 27 March 1985
11 July 1984 23 April 1985
18 September 1984 24 May 1985
17 October 1984 13 June 1985
9. APPENDIX IV
Interpretation of Section 3(c)
The Anti-Discrimination (Pay) Act, of 1974, was introduced in part to
fulfil our obligations under Article 119 of the Treaty of Rome
following our entry into the European Economic Community.
Article 119 states in part:
"Each Member State shall during the first stage ensure, and
subsequently maintain, the application of the principle that
men and women should receive equal pay for equal work".
Given the difficulties encountered in obtaining the implementation of
Article 119 in the original Member States, the Commission submitted a
proposal in 1973 - which became Directive 75/117 of 10th February,
1975 - to specify more clearly certain procedures likely to
facilitate the realisation of the principle of equal pay and to fix
certain minimum standards for the protection of women workers.
This Directive broadened the concept of "equal work" to "work to
which equal value is attributed".
The Court of Justice of the European Communities in Case 43/75,
Gabrielle Defrenne -V- S A Sabena (1976) ECR 455, stated that the
Directive (75/117) is intended "to encourage the proper
implementation of Article 119 by means of a series of measures to be
taken on the national level", and that it "provides further details
regarding certain aspects of the material scope of Article 119".
Therefore to get a true interpretation of Section 3(c) we must have
regard, not only to Article 119, but also to Directive 75/117.
Section 3(c) of our legislation, therefore, cannot be interpreted in
a manner which is more restrictive than the wording used in Directive
75/117, without the Anti-Discrimination (Pay) Act being seen as
offering less than our EEC obligations demand.
Where a common basic rate is paid, if an analysis of the individual
operations performed by male operatives on a quantitative scale,
determines a range of mathematical values, then it can be concluded
that that range is considered as being equal.
10. APPENDIX IV
If a similar analysis is conducted of the operations performed by the
female operatives, and if the range of mathematical values in this
case is determined to be within the range observed for operations
performed by male operatives, then the question must be asked why
they are not also considered as being equal for pay purposes.
The High Court (Telecom Eireann - Murphy & Ors.) has already
determined that equality does not demand mathematical exactitudes.
We would again put it to the Court that the Equality Officer has
correctly interpreted Section 3(c) of the Anti-Discrimination (Pay)
Act, 1974 in the context of our EEC obligations in both Toyota and in
Lissadell.
11. APPENDIX IV
Retrospection
One of the grounds on which the Company have challenged the Equality
Officer's Recommendation is that he:
"erred in law and in fact in ordering that the claimants be paid
equal pay and retrospective pay three years prior to the serving
of the claim".
This point was expanded upon at the hearing to suggest that neither
the Equality Officer nor the Labour Court had the jurisdiction to
make such an award.
Firstly we would make the point that only the issue of the
recommendation of the Equality Officer can be discussed at this stage.
On reading the recommendation we can find no evidence of the Equality
Officer "ordering" the payment of retrospection. On the contrary he
has "recommended" that the entitlement to the Equal Pay date from a
date three years prior to the date on which the dispute was referred
to him.
It is our opinion that the issue as put by the FUE on behalf of the
Company does not arise at this point, and we do not feel that it can
be considered as a ground of appeal.
Conclusion
The issues in this case, we have stressed from the outset, are of
extreme importance. In our submission we asked if the Court would
deal with this appeal in conformity with Pretty Polly where the Court
placed the onus on the appellant to put forward substantial grounds
to succeed in an appeal against an Equality Officer recommendation.
We believe that the Court will find in its examination of the points
put before it that a thorough and detailed investigation was
conducted by the Equality Officer in this case, and that he made his
own decisions based on his personal evaluation of the information at
his disposal, in total conformity with the requirements of the Act.
We would, therefore, ask the Court to uphold Equality Officer
Recommendation EP 10/1986 and dismiss the appeal now before the Court.
1.
APPENDIX V
COMPANY'S SECOND SUBMISSION - SUBSEQUENT TO
LABOUR COURT HEARING OF 19TH NOVEMBER, 1986
1. UNION'S SUBMISSION
1.1 The Union's submission is irrelevant insofar as it refers to the
various international and national declarations, charters, reports
and similar documents. The Oireachtas enacted legislation to
implement the principle of equal pay for equal work. It is to that
legislation alone that we must look for what is statutorily required
of an employer in the implementation of the principle of equal pay
within the employment. It is under legislation alone that the
Labour Court is empowered to investigate a claim for equal pay.
Only where there is doubt as to the meaning of a statute, may the
Courts look to such matters as have direct bearing on the enactment
of the legislation for guidance on the meaning of the statute or of
the unclear part of it. Where this is necessary, only such matters
directly related to the enactment of the legislation may be taken
into account, in the case of the Equal Pay legislation the
Oireachtas debates and, the Community legislation.
In its submission to the Court (and in its submissions to the
Equality Officer), the company argued that, in establishing whether
or not there is an entitlement to equal pay, the Act, and Section
3(c) in particular, should be interpreted strictly. The Court is
referred in this connection to the third submission made to the
Equality Officer on behalf of the company on 10th April, 1986.
The Union in its submission quoted extensively from the
Oireachtas reports on the debates on the Anti-Discrimination
(Pay) Bill in support of an argument that the Act should be
interpreted by the Court broadly to cover any situation which the
Oireachtas had not dealt with. It is clear that the quotations
included in its submissions refer to the concern of members of
the Oireachtas that if the definition of "like work" were to be
confined to that contained in S.3 (a) and (b), such a definition
would be too narrow and the Act would not achieve its purpose.
2. APPENDIX V
What the debates were about was the broadening of the definition of
"like work" to include S.3 (c) not the broadening of the definition
beyond the clear wording of S. 3(c). These quotations cannot be
used to support an argument that the Court should ignore S.3 (c) and
import a further definition which the Oireachtas, in its wisdom, saw
fit not to include. The Company's submission in this respect is
borne out by Keane J. in Murphy & Others -V- An Bord Telecom Eireann
in his judgement on the definition of "like work" and the
interpretation of the words of the Act.
1.2 The use of General Earnings Figures
In support of its claim for equal pay for its members in Lissadell
Towels Ltd, the union includes earnings statistics which purport to
show that equal pay has not been achieved in Ireland. The Company
would have several observations to make on the use of such
statistics:
(a) The figures concerned are earnings statistics, not statistics
on basic pay, and therefore, include such items as bonus,
overtime and other plus payments.
(b) They are general in nature and not specific to any individual
sector or company, they have therefore no relevance to
Lissadell Towels Ltd.
(c) They cover virtually all kinds of employment and all kinds of
work within those employments, they are not statistics on
earnings related to "like work".
1.3 Labour Court Determination DEP 5/79 (Pretty Polly Ltd)
The union, in its submission cited the Court's wording in this
determination to the effect that, in the absence of evidence to the
contrary, the Court would be disposed not to overturn the
recommendation of the Equality Officer. The Company is confident
that it can produce evidence to establish its contention that the
claimants are not entitled to equal pay under the Act of 1974.
It would submit however, that the union is in error in its
interpretation of the Court's determination on this point. Where an
appeal is made, the Court is bound to examine the case de novo, as
is the case with the Unfair Dismissals Act, 1977, and the Maternity
Protection of Employees Act, 1981. The Company would, moreover,
point out that the Union is presuming what is not the case viz -
that the Act places an onus of proof on the employer to demonstrate
that there is no entitlement to equal pay for a claimant.
3. APPENDIX V
There is no such onus in the Act. The onus of proof under the Act
is that of a normal civil case: it is for the person alleging a
civil wrong to show, on the balance of probabilities, that such a
civil wrong has been committed.
The Company would, therefore, respectfully request the Court to
reconsider its position, if such is, in fact, still its position.
In the absence of an appeal to the Civil Courts on the facts of an
equal pay case, the Labour Court is the final arbiter of the facts
of the case. As such, the Constitutional status of the legislation
which so provides must be considered to be unsure, to say the least.
Where the Court is the final arbiter of fact under the legislation
and the normal onus of proof on the plaintiff is not displaced by
the legislation, the Company would submit that the Court must be
seen to interpret the legislation, in this respect in accordance
with normal legal practice.
2. THE COURT HEARING
At the hearing, a member of the Court asked the Company's
representative if the fact that there were, historically in the
Industry and in the Company, male and female rates of pay, did not
indicate that discrimination existed in the Company. The Company
would like to expand on the answer given by its representative on
this point.
It does not deny that, in the past, there were male and female rates
of pay in the Industry and in the Company concerned. The function of
the Court in the present appeal is not, however, to consider whether
or not there was discrimination in the Company in the past but
whether or not, at the time of the claim, there was an entitlement to
equal pay within the meaning of S.2(1) of the Act of 1974. The
method of establishing whether or not there is an equal pay
entitlement is set down in the Act in Ss 2 and 3. It is clearly and
unambiguously stated. It does not include the question of how the
rates of pay were established, merely whether those now obtaining
reflect the value of the relevant work, within the meaning of the
Act. It does not require the pay structure to be fair in industrial
relations terms. The statutory entitlement to equal pay is based
entirely on comparison of the work of a claimant and a comparator
according to the definitions contained in the Act within the context
of the workplace concerned and the timeframe of the claim.
4. APPENDIX V
At the hearing, the Company's representative also pointed out that
to describe rates of pay designated as male and female as
discriminatory in themselves is to assume that the males and
females concerned were doing "like work". The existence of such
sex-designated rates is not, of itself, evidence of discrimination
within the meaning of the Act of 1974. Only if such rates can be
shown to be paid for "like work" within the meaning of the Act
could they give rise to an entitlement to equal pay. Such an
assumption especially cannot be made in the case of work which
both parties are agreed can only be compared within the definition
of S. 3(c). The Company is aware that such a statement will be
decried by the claimants' representatives. It would submit,
however, that the Court's only function is to determine an
entitlement based on the provisions of the Act, not on sentiment
or on opinions of what the Oireachtas should have included in the
Act as evidence of discrimination.
This is an important point. The generally fostered impression
that such "evidence" of discrimination gives rise to an equal pay
claim can be the cause of many claims, otherwise unfounded, coming
before Equality Officers and before the Court. In some cases,
findings appear to have been largely based on such a premise. At
the very least, the allegation of discrimination is seen as
sufficient evidence of a prima facie case of discrimination. The
Company would like to point out to the Court that encouragement of
such a line of thinking is counter-productive. It costs employers
many hours of unproductive work in dealing with an equal pay claim
and it is not conducive to good industrial relations within a
company for false hopes of a successful equal pay claim to be
raised, only to be dashed after prolonged investigations by
Equality Officers and the Court.
2.2 Grounds other than sex. At the hearing, the Chairman of the
Employment Equality Agency, in a comment to the Court on the
Company's submission that the Company would, in the event of a
finding of like work, defend its pay rates on grounds other than
sex, indicated her opinion that such grounds as industrial
relations considerations and economic grounds could not be valid
grounds for a defence under S.2(3) of the Act of 1974. The
Company would respectfully point out to the Court that the
Chairman of the Agency is not supported in her opinion by high
judicial authority.
5. APPENDIX V
In Jenkins -V- Kingsgate, the European Court of Justice stated that
objective economic reasons were good grounds for paying different
rates of pay for equal work and it repeated this finding in the recent
Data Druck* case.
On the question of the effects of the exercise of industrial relations
strength, the Court itself has found in the Grant Barnett case that
such was a good defence under the Employment Equality Act, 1977. The
UK Court of Appeal in the Farthing & Oths -V- Min. of Defence (1980)
IRLR 402. case under the Equal Pay Act, 1970 made a similar finding.
The Company would point out the absurdity of the taking of such
positions. Decisions on costs taken in the interests of the
preservation of an undertaking in a competitive profitable condition,
without regard to questions of sex, must be recognised as objectively
valid under S.2(3). To refuse to so recognise them would be to lead
to the absurdity of the Court making recommendations on what it
considers to be in the best interests of the employment in the
resolution of an industrial relations problem on one day and, on the
next, making a determination that the employer, in accepting the
Court's recommendation, was acting in a discriminatory fashion, merely
because some of the workers involved in a particular job or grade
happened to be men or women.
3. In the Howmedica Determinations recently given by the Court, which
were cited by the claimants' representative in the course of the
hearing, the Court took the view that the Equality Officer was correct
in dealing with the claims on the basis on which they were made. The
Company would submit that this supports its arguments that the
Equality Officer was incorrect in law in importing a further element
into the claim and that he should have dealt with the present claims
as they were made by the claimants.
4. Investigation Under Section 3(c)
The Company has consistently, to the Equality Officer and in its
initial submission to the Labour Court, pointed out that in its view,
the Equality Officer did not carry out a proper investigation in
accordance with the requirements of Section 3(c) of the Act. In light
of this and in the belief that the Equality Officer's Recommendation
was based on an inadequate, if any, survey of the work, the Company
engaged the Irish Productivity Centre to carry out a detailed survey
of all of the jobs.
* Data Druck to read Bilka-Kaufhaus as per letter of 16/1/87 from FUE.
6. APPENDIX V
The IPCs terms of reference were as follows:-
"Evaluate designated jobs in terms of skill, physical and mental
effort, responsibility and working conditions".
The Union were informed of the Company's intentions to carry out the
survey and we understand that the IPC representative spoke to both
the shop steward and the claimants and comparators when evaluating
the relevant jobs.
It is also the Company's understanding that the IPC also agreed job
descriptions with the present holders of jobs during the course of
their examination.
The nett result of the IPC evaluation is to find that the 16 jobs
examined fall naturally into two clear groups. Jobs 1-3 scoring
between 918 and 802 points and Jobs 4-16 scoring between 654 and 522
points. Jobs 1-3 are in fact cloth inspection, cone winding and
packing, i.e. those of the comparators used in this case. Jobs 4-16
are in effect the jobs of all the claimants. It should be noted
that the gap between the lowest score of the higher group and the
highest score of the lower group is greater than the spread of
scores in either group.
A copy of the IPC Report is attached to this Submission.
5. Grounds of Appeal
The Court will note from the Company's original submission and
particularly its notice of appeal dated the 16th September, 1986,
that a considerable number of the grounds of appeal are on points of
law. In light of this, the Company would respectfully suggest to
the Court that it deals with such matters in accordance with the
recent decision of Mr Justice Blaney in the Polymark (Ireland) Case.
The Company also noted that the Registrar of the Labour Court was in
attendance at the first hearing and in light of this, we would refer
the Court to Pages 9 and 10 of Mr Justice Blaney's Judgement. In
the Judgement, he sets out for the benefit of all parties, the
procedure which he believes the Labour Court could safely adopt in
circumstances such as the present case.
7. APPENDIX V
He states that the Court should first inform the parties of their
intention to ask the Registrar for legal advice and then having
obtained the advice, they should at a resumed hearing, inform the
parties of the nature of the advice they had obtained and give the
parties an opportunity of making submissions in regard to it and
finally having heard the submissions of the parties, the members of
the Court should, on their own without further reference to the
Registrar, arrive at their own conclusion on the issue. In light of
this we would respectfully suggest that the Court should indicate to
us whether or not they have sought the legal advice of the Registrar
and if they have so sought, that details of her advice be forwarded
to the parties in advance of the next hearing so that appropriate
submissions can be prepared in time.
1.
APPENDIX VI
UNION'S THIRD SUBMISSION - LABOUR COURT
HEARING OF 5TH MAY, 1987
The Labour Court have put two questions to the Union side, and have
arranged a meeting for 5th May, 1987 to hear the parties responses.
The first is the apparent discrepancy in the statement on page 20 of
the Company's original submission "His (Mr McMahon's) gross pay is
the same as that of the claimants", and the figures submitted by the
Union as Appendix A of its submission dated 15th December, 1986.
- This point is answered as point A.
The second issue is the statement on page 22 of the Company's
Submission that ".... total remuneration must be considered and one
cannot separate the various elements making up the total employment
package concept".
- This point is answered as point B.
2. APPENDIX VI
A. We would make the point initially that Appendix A of our submission of
15th December, 1986, is a document sought by the Equality Officer from
the Company and excluded from information supplied by the Company to
the Court.
Mr McMahon is excluded from the listing of operations, wage levels and
working hours contained therein.
Mr McMahon is employed as a General Cleaner and a list of his duties
which was supplied by the Company to the Equality Officer and omitted
from the documentation supplied by the Company to the Court, is
included as Appendix A to this response.
Mr McMahon was recruited to this position by the Company. During the
period 6th March to 6th October, 1980 his wage structure was as
follows:-
Basic #61.00
Bonus # 4.04
Total #65.04
At that time Ms Keating had just been recruited to the position of
General Cleaner with the same list of duties. Her wage packet was made
up as follows:-
Basic #50.03
Bonus # 4.04
Total #54.07
The two basic rates correspond to the Male/Female rates generally used
in the factory.
The above tables show quite conclusively that the bonus element of the
package was job specific and not as suggested by the Company a
mechanism to provide equality of earnings.
3. APPENDIX VI
Following a review of wages in October 1980 the respective basic rates
increased to #66.88 and #55.03. The bonus element for both people
increased to #4.66.
When Ms Keating transferred to the Make Up Dept. she had the
opportunity to increase her bonus earnings through a productivity
scheme. On a subsequent move back to cleaning, Ms Keating held her
personal level of bonus earnings in line with normal industrial
relations practice.
Appendix 2 shows the wage package which exists for the claimants and
comparators and also for Mr McMahon at all points on a performance
table. This table shows that a woman who works at a level equal to the
ceiling point of the Productivity Scheme, which represents an output
level 56% above that adjudged to comprise a fair day's work, can earn
the same total remuneration as Mr McMahon who has no such performance
requirement. This means the woman must work half as hard again to
attain the same level of remuneration as the man.
Only some of the claimants consistently achieve this level of
performance. Because of this Mr McMahon's gross pay cannot be the same
as all the claimants.
It is in the light of this information that the Equality Officer made
his decision as set out in Sections 17 and 18 of his recommendation EP
10/86.
4. APPENDIX VI
B. In relation to this excerpt from the Company Submission headed "Equality
Officer's Treatment of the Bonus Scheme" we would have severe
difficulty in accepting the Company's argument that it is "quite
irrelevant how bonuses are calculated, provided total remuneration is
equal for those engaged on like work". We would be guided by a
previous decision of the Court in Plunder & Pollak -V- ATGWU (DEP
3/1979) where the Court upheld the Equality Officer's contention in
EP 30/1978 that there should be equal basic rates and equal bonus
earnings for equal levels of output. Clearly, therefore, while the
total remuneration package must be considered so also must the
various elements which go to make up that package.
This question was also considered in EP22/78 Galway Crystal -V- ATGWU
where the Equality Officer again considered not only the overall
remuneration package but also the elements which go to make it up,
specifically stating that consideration of the overall package only
would - "amount to something less than the full application of the
principle of equal pay".
We have outlined in Appendix 2 the total remuneration package
currently in existence in this Company. Only at one point is total
remuneration between the claimants and any of the male employees
equal. At no point do we have a situation where equal basic pay and
equal bonus is paid for an equal level of output.
While we are aware that recommendations of Equality Officers are not,
in themselves, binding, they do amount to an authorative
interpretation on how the implied equality clause of the Act should
be implemented.
We draw the attention of the Court to EP8/86 - Krups Engineering -V-
ITGWU - where a cliam for equal basic rate of remuneration was
accepted as a valid dispute by an Equality Officer, despite the fact
that the comparator's remuneration package included a payment in
addition to basic rate for the performance of clearly specified
duties.
This line of argument would appear to be supported by the EEC Council
Directive (75/117/EEC) Article 1 - "The principle of equal pay for
men and women .... means .... The elimination of all discrimination
on grounds of sex with regard to all aspects and conditions of
remuneration".