DEP876

Labour Court Database __________________________________________________________________________________ File Number: AEP874 Case Number: DEP876 Section / Act: S8(1)AD Parties: DOWDALL O'MAHONEY & CO. LTD - and - ITGWU

Subject:
Appeal by the Company against Equality Officer's Recommendation No. E.P. 2/1987, concerning a claim by nine named female employees for equal basic remuneration with certain male employees.

Recommendation:
Due to technical reasons the Determination in this case cannot
appear in the recommendation field. It is, however, available on
the full document if you choose that display option.

Division: Ms Owens Mr Shiel Ms Ni Mhurchu

Text of Document__________________________________________________________________

AEP874 THE LABOUR COURT DEP687
ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. 6 OF 1987


Parties: DOWDALL O'MAHONEY AND CO. 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. E.P. 2/1987, concerning a claim by nine named
female employees for equal basic remuneration with certain male
employees.

Background:

2. The Company is a subsidiary of Kraft Inc. and has a factory
located in Cork. It manufactures margarine, shortening, cooking
oil, fondant and some bakery specialities. It also distributes
products manufactured abroad by other companies within the Kraft
group.

3. On 29th October, 1985 the Union requested an investigation by
an Equality Officer of a dispute as to whether or not nine female
employees of the Company are entitled under the Act to the same
rate of basic pay as six male employees of the Company.

4. For pay purposes, there are three different grades of hourly
paid operatives in the Cork factory, grades 1, 2 and 3. The
weekly rates of basic pay of these grades, which all have a 40
hour week, are, (as per Equality officer's recommendation No.
EP2/87), as follows:


Grade 1 - #115.60
Grade 2 - #146.40
Grade 3 _ #154.40

5. Grade I consists entirely of females employed mainly on what
the Company regards as "light" packing duties. Other duties
performed by grade I operatives include cleaning, making canteen
tea and collecting and distributing laundry. In accordance with
a collective agreement made between the Company and the
I.T.G.W.U. in 1979, all grade I operatives, as a condition of
their employment, are fully interchangeable with each other in
relation to their work and, in practice, regularly and very
frequently rotate in order to meet operational requirements and
in order to provide an element of variety in the work,
particularly in relation to the packing work which is repetitive
and very short cycled. All the claimants are in this grade.

6. Grade 2 consists entirely of males employed on work regarded
by the Company as being more demanding than grade I work. This
work includes, to different extents, stacking cases of margarine
and fat, packing fondant, filling and manually transporting
drums of oil, using a hand-truck to move pallets of goods and
materials about the factory building, assembling orders for
dispatch, and some product preparation. In accordance with the
same collective agreement made between the Company and the Union
in 1979, grade II operatives, as a condition of their

employment, are also fully interchangeable with each other in
relation to their work. In practice, however, grade II
operatives do not interchange to the same extent as grade I
operatives, largely because the individuals concerned prefer to
remain on particular jobs and do not interchange solely for the
sake of job variety. Five of the men with whom the women are
claiming are grade II operatives.

7. Grade III is also composed entirely of males. These males
are all engaged on a full-time basis in product preparation and
are known as "process operators". The sixth man with whom the
women were claiming is in this grade.

8. The recommendation of the Equality Officer issued on 17th
February, 1987 is attached at Appendix 1.

Labour Court Investigation:

9. The Irish Transport and General Workers' Union on 10th March,
1987 wrote to the Court requesting the implementation of the
equality officer's recommendation. On 27th March, 1987 the
Federated Union of Employers on behalf of the Company appealed the
recommendation of the equality officer to the Labour Court. The
Company's grounds of appeal were as follows:_

1. The equality officer erred in law and in fact in
holding that the company was discriminating against the
claimants within the meaning of the above Act.

2. The equality officer erred in law and in fact in
failing to consider whether the female claimants were
performing like work within the meaning of the Act of
1974 inter se, so as to enable them to claim as a group
and the equality officer to treat them as a group.

3. The equality officer erred in law and in fact in
failing to decide whether the female claimants were
performing like work within the meaning of the Act of
1974 inter se, so as to enable them to claim as a group
and the equality officer to treat them as a group.

4. The equality officer erred in law and in fact in
failing to consider whether the male comparators were
performing like work within the meaning of the Act of
1974 inter se, so as to enable them to be treated by
him as a group for the purposes of comparison.

5. The equality officer erred in law and in fact in
failing to decide whether the male comparators were
performing like work within the meaning of the Act of
1974 inter se, so as to enable them to be treated by
him as a group for the purposes of comparison.

6. The equality officer erred in failing to carry out a
detailed analysis of the work of the female claimants
inter se, having regard to the terms of Section 3(b) of
the above Act, so as to enable them to claim as a group
and the equality officer to treat them as a group for
the purposes of comparison under this sub-section.

7. The equality officer erred in failing to carry out a
detailed analysis of the work of the male comparators
inter se, having regard to the terms of Section 3(b) of
the above Act, so as to enable the equality officer to
treat them as a group for the purposes of comparison
under this sub-section.

8. The equality officer erred in failing to carry out a
detailed analysis of the work of the claimants and of
the comparators so as to enable him to decide whether
the work was comparable within the meaning of Section
3(b) of the Act of 1974.

9. The equality officer erred in considering only one part
of the evidence when comparing the work of the
claimants and of the comparators under Section 3(b).

10. The equality officer erred in law and in fact in his
interpretation of Section 3(b) of the Act of 1974.

11. The equality officer erred in interpreting Section 3(b)
by applying the test of "whether the differences in the
work warrant different rates of remuneration".

12. The equality officer erred in failing to carry out a
detailed analysis of the work of the female claimants
inter se, having regard to all the factors mentioned in
Section 3(c) of the above Act, so as to enable them to
claim as a group and the equality officer to treat them
as a group for the purposes of comparison under this
sub-section.

13. The equality officer erred in failing to carry out a
detailed analysis of the work of the male comparators
inter se, having regard to all the factors mentioned in
Section 3(c), so as to enable the equality officer to
treat them as a group for the purposes of comparison
under this sub-section.

14. The equality officer erred in failing to carry out a
detailed analysis of the work of the claimants and of
the comparators so as to enable him to decide whether
the work was comparable within the meaning of Section
3(b) of the Act of 1974.


15. The equality officer erred in law and in fact in his
interpretation of Section 3(c) of the Act of 1974.

16. The equality officer erred in law in interpreting
Section 3(c) by applying the test of "whether the work
warrants the same rate of remuneration".


17. The equality officer misdirected himself in law and in
fact in taking into account considerations which he
should not have taken into account.

18. The equality officer erred in that he sought to modify
the words of the Act, having regard to his presumed
interpretation of the intention of the legislature.

19. The equality officer was inconsistent in finding that
the company was not discriminating deliberately on
grounds of sex and going on to make a finding of
entitlement to equal pay.

20. The equality officer erred in taking into consideration
in deciding whether there was like work within the
meaning of the Act the work of persons not named in the
claim.

21. The equality officer erred in attributing to the
company agreement to certain propositions put forward
by the union and interpretations of evidence put
forward by the equality officer.

22. The equality officer acted contrary to the principles
of natural justice in failing to adjourn his visit to
the company's premises until a key representative of
the company was available.

23. The equality officer erred in law and in fact in
finding that the claimants are entitled to equal
remuneration with the comparators.

24. The equality officer erred in ordering that the
claimants be paid retrospective equal pay three years
prior to the serving of the claim.

25. Such further or other grounds as may arise at or be put
forward at the hearing of the said appeal.

10. The Court heard the appeal on 3rd June, 1987 and on 24th
June, 1987 visited the Company premises to carry out a work
inspection, following which a further hearing took place. The
written submissions to the Court are attached as Appendices II -
VI.

DETERMINATION:

Due to technical reasons the Determination in this case cannot
appear in the recommendation field. It is, however, available on
the full document if you choose that display option.
~

11. In making its determination the Court intends to deal with
the grounds of appeal in the order they were heard. As some of
the grounds of appeal raised questions about the facts of the
case, which were unresolved at the first hearing, the Court
considered it necessary to investigate the work of the claimants
and the comparators in order to satisfy itself on factual matters.
A brief summary of this investigation is attached hereto.

Following this investigation the Court heard further submissions
from the parties on both matters of fact and points of law.

The Court on consideration of the submissions and its own
investigation finds as follows:-

(1) The Court was requested to find that the Equality Officer
erred in raising and applying a presumption of inequality
under the Act and to overturn the Recommendation on this
ground.

The Court rejects this ground of appeal; the company
failed to establish any presumption of inequality by the
equality officer or that any finding had been made by him
on foot of such a presumption. It is clear to the Court
that the Equality Officer's findings were based solely on
his investigations under sections 3(b) and 3(c) of the
Act.

(2) The Court was requested to uphold the appeal on the
grounds that the Equality Officer misdirected himself in
law in his interpretation of Section 3(b) of the Act of
1974 in failing to apply the conclusion which his findings
warranted and in basing his conclusion on an erroneous
interpretation of the Section.

The Court has given this ground of appeal thorough
consideration and was aided in so doing by having seen the
work carried out by the claimants and the comparators.

The Court is satisfied that the work performed by each of
the claimants and each of the comparators is of a similar
nature. Both claimants and comparators perform general
operative factory work. It is the view of the Court that
it is the intention of Section 3(b) to cover claims from
persons employed in such situations as opposed to persons
employed on the same work which is covered by Section
3(a), e.g. two bus conductors, or work that is not the
same or similar which is covered by Section 3(c), e.g. a
clerical worker and a general operative worker.

Having accepted then that the work is similar in nature it
is necessary to establish if there are any differences and
the Court is satisfied that there are differences between
the work performed by the claimants and comparators.

The Court then had to consider whether these differences
occur
a) infrequently,
or
b) are of small importance in relation to the work as a
whole.

The Court is satisfied that the differences occur on an
ongoing basis and therefore frequently.

The question then requiring consideration is whether these
differences are of small importance in relation to the
work as a whole.

This Section of the Act does not stipulate the basis for
assessing what is or is not of small importance. The
frequency of differences occurring and of conditions are
matters of fact.

Deciding whether or not such differences are of small
importance in relation to the work as a whole must be a
matter for judgement. If the company itself has criteria
for its job classifications which are free of sex bias,
then the Court would consider those criteria. However, in
this case the Court had difficulty in establishing what
criteria were used by the Company in determining the work
to be classified as Grade 1 and Grade 2. It is noted that
these jobs were formerly described simply as male or
female jobs. The Company stated at the second hearing
that no scientific approach had been used and it was
purely their judgement and experience that was used in
arriving at these grades.

In the absence of definitive criteria the Court decided
that it had to examine the work and make a judgement based
on its own knowledge and experience of how grading
structures, salary scales and rates of pay are
established. The Court sought to:-

a) identify the differences between the work of the
claimants and comparators, and

b) decide whether or not these differences were of such
importance that they would normally be used as the
basis for establishing a different grade, salary
scale or rate of pay irrespective of the sex of the
workers concerned.

The major difference identified is that of physical effort
and this was given great emphasis by the Company during
the inspection as was the question of flexibility between
Grade 2 and Grade 3.

The Court is satisfied from all the information before it
and from its own investigation that the difference in the
physical demands made on each of the claimants as they
carry out the different jobs within Grade 1 and the
physical effort on each of the comparators as they carry
out the jobs within Grade 2 are not of such importance
that, if the sex of the workers was not a factor, would
justify a different grade and therefore a different rate
of pay.

In relation to the flexibility issue the Court is
satisfied that both the claimants and the comparators are
equally flexible and interchangeable within their
respective grades. Where the comparators are required to
carry out higher grade work for any significant period
they are compensated accordingly.

The Court does not therefore uphold the appeal on these
grounds.

(3) The further grounds of appeal put forward concerned the
application of Section 3(c) and matters of fact relating
to the work performed.

The Court is of the view that in order to apply 3(c) an
assessment of the work performed by the claimants and
comparators in accord with 3(c), i.e. in terms of the
demands it makes in relation to such matters as skill,
physical or mental effort, responsibility and working
conditions is required.

The Court therefore decided to examine the work of each of
the claimants and each of the comparators. The Court is
satisfied that the claimants perform like work with each
other. Having examined the comparators work the Court is
also satisfied that they perform like work with each other
with the exception of the relief work on Grade 3 jobs.

The Court heard further submissions concerning the range
of work and the comparative flexibility of the claimants
-V- the comparators it being argued by the employer that
the flexibility of the grade through the range of grade 2
work and the liability to carry out grade 3 work on a
relief basis gave the grade 2 a higher value to the
employer.

The Court is satisfied that the actual relief work is
minimal and where a significant relief on Grade 3 work is
required the Grade 3 rate is paid. The Court is also
satisfied from the evidence at the hearings that Grade 2
is the male recruitment grade and is the grade used for
male temporary workers who only do a small portion of the
tasks in the range examined but are paid the full Grade 2
rate.

Having considered all the submissions received from the
parties, including the job descriptions and having
examined the jobs of each of the claimants and each of the
comparators, the Court is satisfied that the work of each
of the claimants is equal in value to that of each of the
comparators in terms of the demands made on them and that
it is therefore like work.

(4) The appellant's further ground of appeal was that should
Section 2(1) be found to apply that Section 2(3) should be
considered by the Court.

Some of the arguments put forward by the appellant under
this heading have already been considered by the Court
under Sections 3(b) and 3(c) of the Act, e.g. that the
flexibility available from Grade 2 operatives was of a
higher value than that of Grade 1.

The Court has considered this issue again under Section
2(3) together with the arguments in relation to the higher
economic value of the Grade 2 jobs to the Company. The
Court finds that the arguments put forward as a basis for
a finding under Section 2(3) are unsustained by any
evidence submitted during the investigation and
accordingly the Court does not accept the Company's
contention (that the higher paid male jobs have a higher
economic value to the Company) is grounds other than sex,
for such payment.

The question of the value of the flexibility, as already
stated, is not specific to Grade 2 and any flexibility
outside the Grade 2 work is separately compensated. The
Court therefore rejects the appeal under Section 2(3).

The Court has, in paragraphs (1)-(4) above, covered the major
grounds of appeal. Any of the other issues raised are not such as
would alter the Courts determination.
~
Signed on behalf of the Labour Court

Evelyn Owens
11th September, 1987 -------------
U.M./U.S. Deputy Chairman


1.

APPENDICES

CONTENTS


1. APPENDIX A - Work Inspection by Court.

2. APPENDIX I - Equality Officer's Recommendation.

3. APPENDIX II - Union's first submission.

4. APPENDIX III - Company's first submission.

5. APPENDIX IV - Union's second submission.

6. APPENDIX V - Company's second submission.

7. APPENDIX VI - Company's third submission.



NOTE: Regarding references to attached appendices, etc, in the
submissions - these are not included here, details were
supplied to the Court.

1. APPENDIX A


On 24th June, 1987 the Court visited the Company premises in order
to inspect the work of the claimants and comparators.

The Court was accompanied by Union and FUE representatives and the
tour of the plant was conducted by the Production Manager. In
addition, the Court heard evidence from the Warehouse Supervisor
and the Quality Control Manager at Management's request, and from
one of the male comparators at the Union request. The Court also
had the opportunity to have informal conversations with the
claimants and comparators. All the tasks performed by the
claimants and comparators were inspected. Where some lines of
production were not in progress Management facilitated the Court
by demonstrating a "mock" run. Various issues relating to the
production process and the work of the employees were raised and
clarified during the course of the inspection. The Court also
examined the interchangeability of the claimants and comparators
within their grades.

At the conclusion of the inspection both parties, i.e. Union and
Management, were asked and confirmed that they were satisfied that
the Court had seen all the tasks and processes carried out by the
claimants and comparators which would enable them to make an
objective assessment of the relative value of the work performed
by the claimants and the comparators.

APPENDIX I
1.

EQUALITY OFFICER'S RECOMMENDATION



RECOMMENDATION:

8. The dispute in this case concerns whether or not nine female
employees of the Company are entitled under the Act to the same
rate of basic pay as six male employees. All the females are in
grade 1, five of the males are in grade II and the sixth male is
in grade III.

9. Whatever about the question of the claimants' entitlement to
the same rate of pay as the males in grade II, it seems to me
that, because of the provisions of section 2(3) of the Act,
they have no entitlement to equal pay with the male in grade
III. Section 2(3) 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".

10. Males in grade III are paid more than males in grade II
because males in grade III are "process operators" engaged on a
full-time basis in product preparation whereas males in grade II
are ordinary general operatives. Clearly, therefore, this is a
distinction other than sex between the two grades. This same
distinction exists between males in grade III and females in
grade I and seems to me, therefore, to be a ground other than

2.
sex within the meaning of section 2(3) of the Act for the
non-payment to females in grade I of the same rate of basic pay
as males in grade III. Therefore, irrespective of whether or
not females in grade I are employed on like work with the named
male in grade III, they are not entitled under the Act to the
same rate of basic pay as that same male.

11. This is not so, however, in relation to the question of the
entitlement of each of the claimants to equal pay with any of
the named males in grade 2. Resolution of this issue requires
in the first instance a decision as to whether or not each of
the females concerned and any of the males concerned are
employed together on like work. An argument was made by the
Company that one of the males concerned, for health reasons, is
not in practice required to perform the full range of grade 2
duties, particularly the more strenuous ones. This argument,
however, would only be relevant in the context of a like work
situation existing between the particular male concerned and at
least one of the claimants. In that context, and assuming that
the other men in grade 2 were found to be employed on higher
work, it would then be necessary to consider whether the
particular male concerned was a genuine anomaly in receipt of
higher pay than the women on grounds unrelated to his sex.

12. Sections 3(a), 3(b) and 3(c) of the Act state the
circumstances in which two persons are to be regarded as being
employed on like work for the purpose of the Act. As the Union
did not specify any particular one of these sections on behalf
of the claimants, I have considered their claim under all three
and reached the following conclusions:

3.

Section 3(a)

13. Section 3(a) of the Act provides that two persons shall be
regarded as being employed on like work:-

"where both perform the same work under the same or similar
conditions, or where each is in every respect
interchangeable with the other in relation to the work."


14. In my opinion, none of the claimants is employed on like work
with any of the named grade 2 males within the meaning of section
3(a) of the Act. They do not perform the same work as any of the
men and neither are they completely interchangeable with any of
the men in relation to their work, either in practice or as a
condition of their employment.

15. With regard to the latter point, the Union submitted that
each of the claimants and each of the males are completely
interchangeable with each other in relation to their work under
clause 5 of the 1979 collective agreement governing their
conditions of employment. (Clause 5 is quoted at appendix 3). It
seems to me, however, having regard to the fact that the agreement
specifically provides for the two different grades of operative,
and to the fact that there is in practice no interchanging between
them, that this interchangeability exists only within each grade,
and not between them. Indeed, complete interchangeability between
the two grades would not in practice be possible since grade 2
work includes lifting weights in excess of the maximum weight a
female may be employed to lift under the terms of the Factories
Act, 1955, i.e. 35.2 lbs. or 16 kg.

4.

Section 3(b)

16. Section 3(b) states that two persons shall be regarded as
being employed on like work:-

"where the work performed by one is of a similar nature to
that performed by the other and any differences between the
work performed or the conditions under which it is performed
by each occur only infrequently or are of small importance in
relation to the work as a whole."

17. The work performed by each of the claimants and that
performed by each of the men is in my view similar in nature; all
are employed as general factory operatives or labourers. Their
work, however, is completely different in content and therefore
there is no question of any differences between the work occurring
only infrequently. The only question is whether or not the
differences between the work, including any differences in the
conditions under which it is performed, are of small importance in
relation to the work as a whole.

18. In the case of Kavanagh and Toyota Motor Distributors (refs.
EP.17/1985 and DEP.1/1986) it was held that whether or not
differences in work performed by two persons are of small
importance in relation to the work as a whole for the purpose of
section 3(b) of the Act should be decided by reference to whether
the differences warrant a difference in remuneration. The
relevant question in this case, therefore, is whether the
differences between the work performed by each of the women and
that performed by each of the men warrant a difference in their
rates of basic pay, since it is basic pay that is the element of
remuneration at issue.

5.
19. In my opinion, a difference in work performed by two workers
which warrants a difference in pay is an actual difference in
terms of skill, effort or some other such factor which, under
normal circumstances in the employment in which the work is
performed, would give rise to a difference in pay irrespective of
which workers were performing it. It is not, for example, a
difference in work performed by a man and a woman on different
rates of pay which would not give rise to a difference in pay if
the same work were performed by two men or, indeed, by two women.

20. In the case here concerned the Company has argued that there
are differences between the work performed by each of the women
and the work performed by each of the grade 2 men which account
for and justify the payment to each of the men of a higher rate of
basic pay. The Union on the other hand has contended that there
is no difference between the work which warrants a difference in
pay and that the existing difference in pay is due solely to the
difference in the workers' sex; in this regard the Union pointed
to the fact that the two rates of pay were known simply as male
and female rates prior to the 1979 collective agreement which
changed them to grade 1 and grade 2. It seems to me, therefore,
that in order to decide in this case whether there are differences
between the work performed by each of the women and the work
performed by each of the men which warrant the payment to the men
of a higher rate of pay it is necessary to consider the
following:-
(i) Are there differences between the work performed by
each of the women and the work performed by each of
the men which have caused the Company to pay each of
the men a higher rate of pay, or is the existing
difference in pay due solely and entirely to
deliberate sex discrimination?

6.

(ii) If such differences exist, are they of a magnitude
which could reasonably be expected to give rise to a
difference in pay irrespective of the sex of the
workers concerned?

(iii) Has the Company overlooked without justification any
compensating factor peculiar to the women's work?

21. From my investigation I have established that the work
performed by the women and the work performed by the men has
never been systematically evaluated by the Company and that the
rates of pay for grades 1 and 2 used in fact to be known as male
and female rates. Notwithstanding this, however, and the fact
that the Company offered to reduce the differential between the
two rates of pay prior to the referral of the dispute to an
Equality Officer, I am entirely satisfied that the difference in
pay between the men and the women is not due entirely to
deliberate sex discrimination. In this regard it is worth
noting that there is no evidence of any individual female having
been employed on a grade 2 job at the lower rate of pay, or of
any male having been employed to perform a grade 1 job at the
higher rate of pay.

22. The difference in pay arises, to what precise extent I
don't know, from a perception held by management of a difference
between the work in terms of physical effort, particularly in
terms of weights lifted. Indeed, the jobs performed by the men
are considered to be suitable only for men (and rightly so where
they necessarily include lifting weights in excess of 16 kgs)
and it is this difference, and this difference only, which has
determined whether a job has been included in grade 1 or in

7.
grade 2. It seems to me, therefore, that any other differences
that may exist between the work of each of the women and the
work of each of the men are entirely irrelevant insofar as the
men's higher rate of pay is concerned and could not reasonably
be accepted as differences which justify the payment to each of
the men of that higher rate.

23. The next question for consideration is, therefore, whether
there is an actual difference, as distinct from a perceived
difference, between the physical effort required to perform the
work of each of the women and the physical effort required to
perform the work of each of the men which, under normal
circumstances in the Company, could reasonably be expected to
give rise to a difference in pay irrespective of the sex of the
workers concerned.

24. In their respective submissions there was a difference
between the parties as to the work performed by each of the men.
The Union sought to make comparisons with the job normally
performed by each of the men whereas the Company argued that
each man's job consisted of all the tasks in grade 2 and that
whereas a man might spend more of his time on some of these
tasks than on others, his rate of pay was based on the full
range of grade 2 tasks and he was liable to perform that full
range of tasks as and when required. The Company also argued
that, in practice, and over a period of time, each man would
perform the full range of grade 2 jobs, except the man with the
health problem. Accordingly, the Company submitted a job
description in respect of each man containing all grade 2 jobs.
The Union, however, who did not accept that there actually was a

8.
health problem in the case of the particular male mentioned by
the Company, submitted in turn that interchanging between the
men did not occur to any great extent but had increased since
the lodging of the equal pay claim. It also pointed out that
the Company occasionally employed temporary male workers to
perform a particular grade 2 job (case stacking) and that these
males were paid the full grade 2 rate.

25. Under section 3(b) of the Act, the appropriate comparison
in an equal pay claim is between the work actually performed by
the woman and the work actually performed by the man. In view
of the interchangeability that exists as part of the men's
conditions of employment, and having spoken with the men
concerned myself, as well as their supervisors, I am satisfied
that the Company's version of what they actually perform, over a
period of time, is in fact correct. Indeed, it might be worth
noting that even if the Company's version were not correct, the
Company would be within its rights in interchanging the men to
whatever extent it wished.

26. Clearly, however, it would not be fair and reasonable to
decide whether there is a difference in terms of physical effort
between the work of each of the women and the work of each of
the men which warrants a difference in their pay on the basis of
a comparison between the physical effort required to perform
each of the women's jobs and the physical effort required to
perform all the men's jobs. This would be a comparison of one
woman's work with the work of five men. Neither would it be
reasonable to decide on the basis of a comparison with the
actual physical effort required of each grade 2 male over an
arbitrarily chosen period of time, or with an estimate of the
average physical effort required of each grade 2 male over any
given period of time. All of these comparisons ignore the basic

9.
fact that grade 2 consists of a number of clearly identifiable
separate jobs which are perceived by management on an individual
basis, and not on some sort of arbitrary collective basis, as
being more demanding than each of the women's jobs in terms of
physical effort and, therefore, as being appropriate to the
higher rather than the lower grade. There is of course
interchangeability between grade 2 males but, as is borne out by
the Union's point concerning temporary male case stackers, the
performance of any grade 2 job over any given period of time
would, in its own right, attract the grade 2 rate of pay.
Otherwise, presumably, the job would have been included in grade
1. Yet any one of these individual jobs could require less
physical effort than the average for the grade as a whole, or,
more importantly, less than the work performed by each of the
women.

27. Taking therefore as fact that in the case of the men the
minimum physical effort required to qualify for the grade 2 rate
of pay is no higher than the level required to perform the least
demanding grade 2 job, the appropriate test of whether the work
of each of the women warrants payment of the same rate of pay as
the work of any one of the grade 2 men would seem to me to be
whether or not the work of each of the women requires any less
physical effort than that same least demanding grade 2 job and,
if so, whether the difference is of a magnitude which could
reasonably be expected to give rise to a difference in pay
irrespective of the sex of the workers concerned. Having
examined all the jobs concerned, I am satisfied that each of the
women's work does not require such lesser effort. This is
perhaps most obvious when one compares their work with the
Fondant Packing job where the weights lifted at 12.5 kgs
(considerably less than the maximum weight a female may be

10.
employed to lift) are greater than those handled by
each of the women but where the waiting time far exceeds actual
working time. I estimated that a Fondant Packer lifts one box
of Fondant about every three minutes, because the filling
machine takes about that long to fill a box. In the case of
each woman's job, which consists almost entirely of short cycled
packing duties on the margarine and fat production lines, there
is virtually no waiting time. It is also interesting to record,
but not critical to my decision, that the Company did not
dispute the Union's estimate that the energy expended by a woman
on packing duties is actually greater than that of a man on case
stacking.

28. It therefore seems reasonable to me to conclude that
whatever difference in terms of physical effort may exist
between the work actually performed by each of the women and the
work actually performed by each of the men, over any given
period of time, there is no difference between it which warrants
the payment to the men of a higher rate of pay. The work of
each of the women requires at least the same physical effort as
the physically least demanding job in respect of which each of
the men would be paid the grade 2 rate.

29. In answer to the third question raised at paragraph 20, I
am satisfied that there is no factor peculiar to the women's
work which the Company has without justification overlooked. In
other words, the women's work does not warrant a higher rate of
pay than the work of each of the men; it is like work in terms
of section 3(b) of the Act.

11.
Section 3(c)

30. Section 3(c) provides that two persons shall be regarded as
being 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."

31. Section 3(c) refers to work which when evaluated in terms
of such factors as skill, effort, responsibility and working
conditions is equal. Job evaluation, however, is not an exact
science and it is an accepted fact that it is not possible to measure the demands of two individual jobs in the same way as it
is possible to measure with mathematical exactitude such things
as, for example, the length of two pieces of rope. This,
indeed, is not the objective of normal job evaluation. The
objective is, to quote an ILO publication on the subject "to
provide a means for establishing a wage structure that is
acceptable to labour and management and that, as far as
possible, is fair and equitable in the sense of ensuring equal
pay for jobs demanding broadly equivalent sacrifices from their
incumbents ....".(ILO Job Evaluation).

32. Apart from the impossibility of measuring with mathematical
exactitude such factors as skill and responsibility, it is also
an accepted fact that the outcome of any job evaluation exercise
will normally depend on the factors chosen and the weighting or
relative importance attached to those factors. By altering the
chosen factors or the weights, it is possible to alter the
outcome of the job evaluation exercise. Even where one job was

12.
in every respect more demanding than another, it would still be
possible to evaluate them as equal depending on whether or not
the differences between the factors were marginal, and depending
on what one decided to regard in an overall context as broadly
equivalent, or, to use job evaluation terms, as appropriate to
the same grade.

33. It therefore seems to me that, if the matter is to be
decided on a logical basis, and if the Act is to have any
usefulness in terms of achieving equality in pay matters as
between men and women, what is equal in value in the context of
section 3(c) of the Act must be decided on the basis of what may
as far as is reasonably possible be justifiably regarded as
equal. So, therefore, where there is a dispute under the Act as
to whether a woman and a man are entitled to the same rate of
remuneration arising out of a difference of opinion as to whether
they are employed on like work in terms of section 3(c) of the
Act, the decisive test should be whether the work performed by the
woman and that performed by the man, in terms of the demands that
it makes upon them, warrants payment of the same rate of
remuneration. The test, which was also applied in the case of
Lissadell Towels and 56 Female Employees (EP. 10/1986), is
actually the same test as applies under section 3(b) of the Act,
but in a positive rather than a negative form. Under 3(b) it is
whether the differences in the work warrant different rates of
remuneration; under 3(c) it is simply whether the work warrants
the same rate of remuneration. In my opinion, therefore, work
of equal value under section 3(c) of the Act amounts to work
which warrants the same rate of remuneration.

34. Having decided that the work performed by each of the
claimants and the work performed by each of the grade 2 males
constitutes like work within the meaning of section 3(b) of the
Act, I am equally satisfied, and for the same reasons, that the
work is also like work in terms of section 3(c) of the Act.

13.
35. In view of my foregoing conclusions, I recommend that each
of the claimants be paid the same rate of basic pay as each of
the named grade 2 males with effect from 29th October, 1982, or
from the date they commenced employment in the Company,
whichever is the later in each case.