Labour Court Database __________________________________________________________________________________ File Number: AEP878 Case Number: DEP882 Section / Act: S8(1)AD Parties: JOHNSON AND JOHNSON (IRELAND) LIMITED - and - ONE FEMALE WORKER;THE IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Union on behalf of the worker (a Dispersalloy Primary Operator) against Equality Officer's Recommendation EP11/1988 concerning a claim that she is entitled under the Act to the same rate of remuneration as that paid to two named male Caplet Operators.
Recommendation:
6. The Court has carefully examined the submissions of both
parties and the comments which each has made on the others
submissions. The Court has furthermore examined the work for
itself at first hand and discussed its observations with the
parties after the work inspection at the plant.
The Court has come to the view that the work of the claimant is of
equal value to that of both comparators. While there are
differences in the nature of the work and the range of skills
required, overall the demands of the work are so nearly equal
that, it is not possible to say which is of greater value, the
work of the claimant or that of the comparator.
However, the Company pays a different rate for the job and the
question therefore rises as to whether the sex of the job holders
is a determining factor. Both jobs are highly skilled and both
are paid an appropriate rate in recognition of this. The
claimant's rate is the same (after allowance for normal wage
increases) as the rate paid to her predecessor in the job and his
rate was based on the Company's evaluation of the job when he was
performing it. As the rate for the job was determined when a man
was performing it and as the same rate is now being paid to the
claimant her rate is not influenced by the fact that she is a
woman.
The Court has further considered whether the claimant's rate has
remained as it is because she is a woman. Would she have been
given an increase in line with the increase granted to the male
Caplet Operator at the time he got it if she was a man in a
similar position. The Court finds on the basis of the evidence,
that the Company would not have granted the same increase to the
Dispersalloy Operator even if a man had held the job. The
documentation shows that the increase was, in the Company's view,
warranted on the basis of the new work which was being carried out
at the time. There is no evidence that it was motivated by the
fact that the increase was being granted to a man rather than a
woman.
Because the claimant's rate of remuneration is the same as that of
the man who preceded her in the job, the Court accepts that the
claimant's rate of remuneration is not related to her sex and it
must, therefore, be related to a reason other than sex. This
reason is, the Court finds, the Company's non-discriminatory
evaluation of the work of the Caplet Operator at the time the job
was created and a similar basis of evaluation was used in
determining the rate for Dispersalloy Operator when it was
created.
The Court therefore determines that the claimant is not entitled
to equal remuneration with the Caplet Operator.
Division: CHAIRMAN Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEP878 DETERMINATION NO. DEP288
EP11/1987
THE LABOUR COURT
ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. 2 OF 1988
PARTIES: JOHNSON AND JOHNSON (IRELAND) LIMITED
and
ONE FEMALE WORKER
(REPRESENTED BY THE IRISH TRANSPORT AND GENERAL WORKERS' UNION)
SUBJECT:
1. Appeal by the Union on behalf of the worker (a Dispersalloy
Primary Operator) against Equality Officer's Recommendation
EP11/1988 concerning a claim that she is entitled under the Act to
the same rate of remuneration as that paid to two named male
Caplet Operators.
BACKGROUND:
2. The claimant and the comparators are employed in the Company's
Dispersalloy manufacturing unit. This unit is a separate and
distinct unit and is concerned with the manufacture of dental
filling materials. The unit was set up in 1984 and in October,
1984 the first employee, Mr. Peter Bolger (one of the comparators)
was assigned as Dispersalloy Primary Operator. In January, 1985
the claimant was appointed to the Dispersalloy unit as a Packer.
During 1985 it was decided to add a new phase to the Dispersalloy
operation, namely the production of Dispersalloy Caplets. At
about this time the claimant was told that she would be given an
opportunity to learn the range of skills of a Dispersalloy Primary
Operator and when she was fully competent she would be moved onto
the Primary Operator rate. In January, 1986 the claimant moved to
the full Dispersalloy Primary Operator duties and pay rate. She
received the same rate of pay as Mr. Bolger until April, 1986 when
the new Caplet machine arrived. It was decided by Management that
Mr. Bolger would operate the new machine. He made a claim for an
increased rate and following Management discussions in April/May,
1986, the Company decided to pay the Caplet Operator at a higher
rate. The Company decided to further expand the Dispersalloy Unit
in 1987 and following a competition in May, 1987 it appointed an
additional female Packer, a male Primary Operator and a male
Caplet Operator, (the latter has also been named by the claimant
as a comparator). The claimant contends that she is engaged on
work of equal value to that performed by the two Caplet Operators
within the terms of Section 3(c) of the Act. This is rejected by
Management. The claimant's rate of pay is #246.16 per week while
the comparators' rate of pay is #256.99 per week. On the 15th
July, 1987, the Union, on her behalf referred the claim to the
Equality Officer for investigation and recommendation.
3. Following an investigation of the matter, the Equality officer
issued the following conclusions and recommendation on the 13th
November, 1987:-
CONCLUSIONS:
13. Section 2(3) of the Act states that:-
"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."
If an Equality Officer is satisfied that the difference
between the rates paid to the claimant and the comparator
in an equal pay dispute is genuinely based on grounds
other than sex an evaluation of the work concerned is not
necessary because even if the claimant and the comparator
were found to be employed on like work an entitlement to
equal pay would not exist. While submissions were made
regarding the demands of the work and a full job
inspection was carried out, much of the argument before me
was on whether or not grounds other than sex existed. In
the circumstances of this particular case I have decided
to consider, in the first instance, the submissions made
under Section 2(3) of the Act.
14. It is a fact that pay differentials for work which
is equally demanding do exist in a number of employments.
These pay differentials can be based on a number of
factors including the qualification of the job holder, red
circling or positioning on incremental scales. Pay
differentials can also exist as a result of sex
discrimination. The only form of discrimination made
unlawful by the terms of the Anti-Discrimination (Pay)
Act, 1974 is discrimination in rates of pay on the basis
of sex. This was made quite clear by the Labour Court in
the case of Department of Public Service and Association
of Higher Civil Servants (DEP 23/79) where it was stated
that -
"10. the Oireachtas has given powers to the Court
to prohibit the continuance of one traditionally
accepted pay differential i.e. the differential
between the pay of men and women. The Oireachtas
has not given the Court any power to prohibit by law
the use of any other criteria whether justified or
not."
15. The Union has made the case that the Company's
assertion that it could have made an incorrect assessment
of the relative demands of the two jobs cannot be accepted
as valid grounds other than sex if it is found by the
Equality officer that the jobs are in fact of equal value.
I do not accept this to be the case. If an incorrect
assessment of demands is made as a result of a genuine
error of judgement unrelated to the sex of the job
holders, it cannot be found that the pay differential
which results from the assessment is unlawful within the
terms of the Anti-Discrimination (Pay) Act, 1974 as there
has been no discrimination on the basis of sex. In
investigating any such case, however, the Equality Officer
will consider very seriously whether or not any incorrect
assessment which may have occurred was in any way related
to the sex of the persons performing the jobs concerned.
16. The Union submits that a climate of inequality
exists in the Company and that the decision to pay the
male Caplet Operator a higher rate than the claimant for
work which it claims is equal in value only reflected the
general bias in favour of males. The Company claims that
the difference in rates of pay results from their belief
that the work of a Caplet Operator is more complex and
more demanding than that of a Primary Operator. It claims
that a rate was fixed for the jobs in the Dispersalloy
Unit without any regard to the sex of the job holders.
17. I note the development of the Dispersalloy Unit
as set out in Appendix I (of Equality Officer's
Recommendation). A finding of sex discrimination would
imply that the claimant is paid a rate of pay related to
her sex. I note that the rate for the Primary Operator
was set when Mr Bolger was the sole occupant of the post.
When the claimant was promoted in January, 1986, she was
paid the same rate. In these circumstances I am satisfied
that the rate paid to the claimant was the rate for the
job and was not in any way related to the sex of the job
holder. As in the case of the Primary Operator, the rate
for the Caplet Operator was also set when Mr Bolger was
the sole occupant of the post. The Union submits that the
Company's perception of the Caplet Operator's work as
being more demanding was due to the fact that the work was
performed by a male. I consider it most improbable that
the Company would have perceived the demands of the work
performed by him as a Caplet Operator to be greater than
the demands of the work previously performed by him as a
Primary Operator because of his sex. Nothing in the
Union's submission has convinced me that this did in fact
occur. Having considered the submissions of both parties,
I am satisfied that the rate was set for the Caplet
Operator for the reasons as put forward by the Company and
constituted a rate for the job which was in no way related
to the sex of the job holder.
18. Based on the conclusions above I am satisfied that
there are grounds other than sex for the payment of
different rates of remuneration to the claimant and the
comparators. It follows that it is not necessary to do a
job evaluation in this case as even if the jobs were found
to be of equal value there would be no entitlement to an
equal rate of remuneration.
Recommendation:
19. In view of my conclusions in the above paragraphs I
recommend that the claimant is not entitled, under the
terms of the Act, to the same rate of remuneration as that
paid to the two named comparators.
4. The Union, on behalf of the claimant, appealed the Equality
Officer's Recommendation to the Labour Court under Section 8(1) of
the Anti-Discrimination (Pay) Act, 1974, on the 15th December,
1987. The Court heard the appeal on the 25th February, 1988.
5. Following its investigation of the appeal, the Court wrote to
both parties informing them that it proposed to visit the
Company's premises to inspect the work of the claimant and the
comparators with a view to determining if they were employed on
like work. The Court visited the factory on the 19th April, 1988
(the earliest suitable date).
The Union's Notice of Appeal in addition to the written
submissions from the parties and correspondence from the Court are
attached as appendices to this Determination.
DETERMINATION:
6. The Court has carefully examined the submissions of both
parties and the comments which each has made on the others
submissions. The Court has furthermore examined the work for
itself at first hand and discussed its observations with the
parties after the work inspection at the plant.
The Court has come to the view that the work of the claimant is of
equal value to that of both comparators. While there are
differences in the nature of the work and the range of skills
required, overall the demands of the work are so nearly equal
that, it is not possible to say which is of greater value, the
work of the claimant or that of the comparator.
However, the Company pays a different rate for the job and the
question therefore rises as to whether the sex of the job holders
is a determining factor. Both jobs are highly skilled and both
are paid an appropriate rate in recognition of this. The
claimant's rate is the same (after allowance for normal wage
increases) as the rate paid to her predecessor in the job and his
rate was based on the Company's evaluation of the job when he was
performing it. As the rate for the job was determined when a man
was performing it and as the same rate is now being paid to the
claimant her rate is not influenced by the fact that she is a
woman.
The Court has further considered whether the claimant's rate has
remained as it is because she is a woman. Would she have been
given an increase in line with the increase granted to the male
Caplet Operator at the time he got it if she was a man in a
similar position? The Court finds on the basis of the evidence,
that the Company would not have granted the same increase to the
Dispersalloy Operator even if a man had held the job. The
documentation shows that the increase was, in the Company's view,
warranted on the basis of the new work which was being carried out
at the time. There is no evidence that it was motivated by the
fact that the increase was being granted to a man rather than a
woman.
Because the claimant's rate of remuneration is the same as that of
the man who preceded her in the job, the Court accepts that the
claimant's rate of remuneration is not related to her sex and it
must, therefore, be related to a reason other than sex. This
reason is, the Court finds, the Company's non-discriminatory
evaluation of the work of the Caplet Operator at the time the job
was created and a similar basis of evaluation was used in
determining the rate for Dispersalloy Operator when it was
created.
The Court therefore determines that the claimant is not entitled
to equal remuneration with the Caplet Operator.
~
Signed on behalf of the Labour Court
30th June, 1988 John M Horgan
DH/US Chairman