Labour Court Database __________________________________________________________________________________ File Number: AEP879 Case Number: DEP883 Section / Act: S8(1)AD Parties: PENN ATHLETIC PRODUCTS COMPANY (IRELAND) LIMITED - and - MS. MARY OAKES;IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeals by the Company against Equality Officer's Recommendation No. E.P. 12/1987 concerning a claim that the worker is entitled to the same rate of remuneration as that paid to three named male workers, and by the claimant for implementation of the Equality Officer's Recommendation.
Recommendation:
31. In view of my foregoing conclusions the claimant is
entitled to the same rate of remuneration as Mr. J. Armstrong,
Mr. F. Craigey and Mr. L. Carolan. I recommend that she be
paid that rate with effect from February, 1985, the date she
commenced as a Grade C, Ball Repair Operative."
6. The Company appealed the Equality Officer's Recommendation to the
Labour Court by letter dated 21st December, 1987. The Court heard
the appeal on 11th April, 1988 and, following a visit to the
Company's premises to inspect the work of the claimant and
comparators, reconvened the hearing on 18th April, 1988. (The
Claimant has submitted an appeal to the Labour Court for
enforcement of the Equality officer's Recommendation). The
notices of appeal and the written submissions of the
parties to the appeal are attached as appendices to this
Determination. The parties enlarged on these submissions at the
hearings.
DETERMINATION:
7. The Court has carefully examined the submissions of both
parties and the comments which each has made on the other's
submissions. The Court has furthermore examined the work of
the claimant and the Back-End operators at first hand and
subsequently had a further hearing with both parties.
The Equality Officer found that the comparators' work was
divided into three separate operations and the comparators
rotate through these operations. The Equality Officer found that
the demands made on the claimant were less than the demands made on
the comparators when on the 1st operation (Inter mix), equal on the
2nd operation (mill and extruder) and more demanding on the 3rd
operation (Take off/Rheometer). The Court's view on examining the work
is that the demands made on the claimant are less than the demands
made on the comparators when on the 1st and 2nd operations in terms
of skill and physical effort and equal on the 3rd operation when
only Rheometer/Take off duties are involved.
On the basis of this examination and investigation the Court
accepts that there is validity in the first ground of the
Company's appeal. The claimant's work requires greater
concentration on detail over an extended period. However, overall
it makes less demands on the claimant than the range of duties,
which are performed in the Back-end, makes on the comparators.
The Court is satisifed therefore that the claimant is not
performing work of equal value with the work of the three named
comparators. The Court therefore decides that the Company's
appeal be upheld and determines accordingly.
Signed on behalf of the Labour Court
John M Horgan
14th July, 1988 Chairman
R.B./U.S.
Division: CHAIRMAN Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEP879 DETERMINATION NO.DEP388
ANTI-DISCRIMINATION (PAY) ACT, 1974
PARTIES: PENN ATHLETIC PRODUCTS COMPANY (IRELAND) LIMITED
and
MS. MARY OAKES
(Represented by Irish Transport and General Workers' Union)
SUBJECT:
1. Appeals by the Company against Equality Officer's
Recommendation No. E.P. 12/1987 concerning a claim that the worker
is entitled to the same rate of remuneration as that paid to three
named male workers, and by the claimant for
implementation of the Equality Officer's Recommendation.
BACKGROUND:
2. The Company is engaged in the manufacture of tennis balls and
undertakes all stages of production including the manufacture of
the rubber for the balls, the manufacture of the balls themselves
and their distribution to customers.
At the time of the Equality Officer's investigation there were
three Grades in the production area - Grades A, B and C.
The claimant is a Grade C operative and the comparators
are all Grade A operatives. The basic rates of pay as at 16th
April, 1987 are:
Grade A - #161.74 per week
Grade B - #147.75 per week
Grade C - #145.38 per week.
By agreement the Grade C rate has been phased out and only two
Grades, A & B, now operate.
3. The claimant works as a ball repair operative. She
re-inspects balls which have been rejected during production and
sorts them into good, bad and repairable balls. She carries out a
range of repair operations on the repairable balls. She is called
upon from time to time to do stamping/inspection work for which,
when she satisfies certain conditions, she is paid the grade B
rate.
4. The comparators' work is as follows:
Richard Keelahan works as a Back-coat Operator. He mixes various
ingredients to make tanks of cements and operates the back-coat
machine which spreads an even coat of cement onto rolls of felt.
Pat Plunkett works as a Maintenance Utility Man. He carries out a
daily oiling/lubrication round of all the Company machinery. He
also assists the fitters, changes filters, cleans, does grounds
maintenance, assists in loading/unloading and drives the Company van.
P J Montgomery and Pat Nally-Reidy work as Storemen. The storemen
check in goods received and move them into stores. They move goods
to the production area as required following a production
schedule, they check goods out, keep records of all transactions
and do regular stock checks.
Jimmy Armstrong, Fergus Craigey and Leonard Carolan work as
Back-end Operators. The Back-end involves a number of functions
which are rotated on a regular basis and which vary depending on
the process being run. The principal functions are (i) weigh-up:
making up batches of rubber and chemicals to be mixed, (ii)
inter-mix: operating the inter-mix machine which mixes the
materials, (iii) mill: milling the mixture through hot rollers
and feeding into the extruder to make pellets, and (iv)
extruder/rheometer: monitoring pellets coming off the extruder,
taking the pellets off the conveyer and testing samples in the
rheometer. Back-end operators also do miscellaneous duties
concerned with preparing materials for cements.
Job descriptions were submitted by both the Company and the Union.
There are no disputes as to the actual functions carried out by
either the claimant or the comparators.
5. Two separate disputes were referred to the Equality Officer:
(i) claim by Ms Mary Oakes that she is employed on like work
with Mr Richard Keelehan within the terms of Section
3(c) of the Act. This dispute was referred to the
Equality Officer for investigation on 20th January,
1987, and
(ii) claim by Ms Mary Oakes that she is employed on like work
with each of the other six named comparators within the
terms of Section 3(c) and with each of the seven
comparators within the terms of Section 3(b). This
dispute was referred to the Equality Officer for
investigation on 24th April, 1987.
On 17th November, 1987, following an investigation of the claims,
the Equality Officer issued the following conclusions and
Recommendation.
"Conclusions of the Equality Officer:
Section 3(b)
16. The first question which I have considered is whether or
not the work of the claimant and that of each of the
comparators is like work within the terms of Section 3(b) of
the Act. 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".
The Union submits that Section 3(b) should be interpreted
widely while the Company argues that Section 3(b) should
only apply to work which has a near resemblance to that to
which it is being compared. I have given careful
consideration to the arguments of both parties on this
issue. I do not accept the narrow interpretation of similar
in nature as being simply an extension of the "same work"
provision in Section 3(a). Section 3(b) does not refer to
the "same work" but to work which is of a "similar nature"
and it permits frequent differences between the jobs being
compared so long as these differences are of small
importance in relation to the work as a whole.
17. I have examined the work of the claimant and that of the
comparators. Three of the comparators carry out functions
which are particular to their specific job titles i.e. the
Maintenance Utility man and the two Storemen. The remaining
four comparators are machine operators and operate the
Back-Coat and Back-End machinery. The claimant spends her
time examining, sorting and repairing tennis balls and does
not operate machinery, except for the short time during
which she does Stamping/Inspection work. I consider the
work of the claimant to be so dissimilar to that of the
comparators that, even applying a wide interpretation, it
cannot be considered "similar in nature" within the terms of
Section 3(b).
Section 3(c)
18. Section 3(c) of the Act states that 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".
In order to establish whether or not the work performed by
the claimant is equal in value to that performed by each of
the comparators I examined the work and assessed the demands
made by his/her work on each of the individuals concerned.
In comparing the work I have taken account of all of the
duties performed by each individual. Thus in the case of
the claimant I included both her ball repair work and her
stamping/inspection work and in the case of the back-coat
operator I included his Cement Mixing and Back-end duties as
well as his operation of the Back-coat machine.
19. Based on my consideration of the demands of the work
performed I am satisfied that the claimant's work is not
equal in value with that of Mr Keelahan, Mr Plunkett, Mr
Montgomery or Mr Nally-Reidy, i.e. the Back-coat Operator,
the Maintenance-Utility Man or the two Storemen. A
comparison of the demands of each of these jobs with those
of the claimant's is set out at Appendix III of the Equality
Officer's Recommendation.
The Back-End
20. The three remaining comparators work at the back-end of
the factory where there are three principal production
processes, P+, P- (masters) and P- (Finals). The length of
time spent on each process will vary from day to day but on
average over a period would work out at 4 hours on P+, 1 1/2
to 2 hours on P- (Masters) and 1 1/2 to 2 hours on P-
(Finals). The back-end operators are occasionally called on
to prepare and run cements although this is usually
performed during the night shift. Work at the back-end is
organised into four different operations three of which are
rotated on a weekly basis. The weekly operations are
assigned as follows:-
__________________________________________________________________
| P+ | P-
______________|____________________|_______________________________
| |
Operation 1| Inter-Mix | Inter-Mix
_____________|____________________|_______________________________
| |
Operation 2| Mill/Extruder | Mill
_____________|____________________|_______________________________
| |
Operation 3| Rheometer/take-off | Mill
_____________|____________________|_______________________________
| |
Operation 4*| Weigh-up | Weigh-up/Extruder & take off
_____________|____________________|_______________________________
* There are four back-end operators, the three named comparators and a
fourth operator who is permanently assigned to Operation 4 and acts
as back-up for other operators when required. The remaining three
operations are rotated on a three weekly cycle among the three named
comparators at the back-end.
21. The Equality Officer accepts that there is flexibility
among the back-end operators and that each of the operators
could be called on to assist in another operation at any time.
The day time operators can also be called upon occasionally to
run cements. This involves a similar process i.e. weigh up,
inter-mix and milling with the processed cement then being
loaded into a tank of solvent. This rarely happens, however,
as cements are usually run during the night shift. On a more
regular basis, however, the back-end operators are called upon
to do miscellaneous duties in preparation for the running of
cements during the night shift. These occasional duties do
not occur on a daily basis but when averaged out would account
for between a half hour and one hour each day.
22. I have examined the work of each of the comparators at the
back-end. In comparing the work of the claimant with that of a
Back-end Operator it would not be fair to compare the demands
of her job with the demands of a Back-end Operator undertaking
all of the back-end operations because at any one time each
comparator is only assigned to one particular operation and
only carries out the duties related to that operation. The
demands under such headings as responsibility, effort and
working conditions only arise when a particular operation is
being undertaken and must not be double counted when assessing
the demands of a job. However, each operator must be given
credit for the skill required to do all of the tasks because
even if he is on inter-mix one week he may be called to cover
for mill or extruder and in any event he will eventually be
rotated to these functions.
Each of the operations at the back-end is considered by the
Company to be a grade A operation in itself and the higher rate
of remuneration is paid in recognition of the demands of the
job. Where the demands do not merit the Grade A rate the
Company assign a Grade B operative. For example, the Rheometer
is operated by a Grade A operative while P+ is being run
because there is immediate feedback and adjustment to materials
as a result. However, it is operated by a Grade B operative
when P- is being run because a lower level of responsibility is
required.
23. I have therefore compared the demands of the work of the
claimant with the demands of a Back-end Operator undertaking
each of the Back-end Operations, giving credit for the fact
that each operator requires the skill to carry out all back-end
operations. A comparison between the demands made by the
claimant's work and the demands made by the work of a Back-end
Operator is provided at Appendix IV of the Equality Officer's
Recommendation.
Based on my consideration of the demands made I am satisfied
that the claimant's work is less demanding than Operation 1,
equally as demanding as Operation 2 and more demanding than
Operation 3.
24. It is clear from my consideration of the demands of the
work of the comparators at the Back-end that there is a range
of operations which the Company treats as equal for pay
purposes even though within that range not all operations are
equally demanding. Whether he is on the more demanding or less
demanding work the Back-end Operator remains on the same rate
of pay. The demands of the claimant's work are in the middle
of the range of demands of the Back-end operations. In any one
week a Back-end Operator may be doing work which is more, less
or equally demanding than that of the claimant. However, over
the three week cycle the total demands made on a Back-end
Operator will be equal to the demands made on the claimant. I
am satisfied therefore that the work performed by the claimant
is equal in value to that performed by each of the Back-end
Operators.
25. I note that work at the Back-end was organised on a
different basis for a period from August, 1985 to December,
1986. I have examined the work as it was performed during this
period. While the work was organised differently, the actual
duties performed by the Back-end operators was broadly similar.
I consider that the work of each of the operators, as it was
organised prior to December, 1986, was not any more demanding
than that which is performed by them at present. I am
satisfied that that work was also equal in value to that
performed by the claimant.
Section 2(3)
26. The fact that the claimant is employed on like work with
Grade A Back-end Operators does not entitle her automatically
to the same rate of remuneration. Her entitlement is qualified
by the terms of Section 2(3) which states 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".
In the context of Section 2(3) the Company argues that there
are reasons, other than sex, which justify different rates of
remuneration in that both males and females are employed in
each grade and the grading structure is based on such objective
factors as the degree of responsibility, initiative and skill
involved as well as the degree of physical effort. The Company
also argues that the particular conditions under which the
claimant performs her stamping/inspection duties constitute
reasons other than sex for the payment to her of the Grade B
rate while she performs those duties.
27. Both sides provided the Equality Officer with a history of
the development of the grading system. The Company accepts
that the three grade structure of 1974 basically mirrors the
present A, B and C structure apart from the upgrading of the
Felt-cut and Stamping/Inspection work. In 1974, when it set up
operations, Grade C was composed entirely of females and Grades
A and B were composed entirely of males. The Company does not
accept that this constitutes evidence that the employees were
paid unequal pay for like work and contends that they were paid
at all times according to the work they were doing.
The Union submits that discrimination has existed in the
grading structure since 1974 when Grade C was a general female
grade, Grade B was a general male grade and Grade A was for
specific male operations adjudged by the Company to be of
higher value. The Union claims that the developments which
have taken place in the grading structure have not taken
account of specific female operations which it considers to be
of higher value and to warrant the Grade A rate. The Union
submits that the claimant performs such an operation.
28. I note that both males and females are currently employed
in all grades. However, this does not in itself establish that
the grading system is non-discriminatory. In order to decide
whether the grading system is genuinely non-discriminatory it
is necessary to give consideration to its origin. In this
case, whether by design or otherwise, the lowest paid Grade C
has evolved from an exclusively female grade while the higher
paid Grades A and B have evolved from exclusively male grades.
Where a difference in pay rates between grades may have been
historically due to sex it would not be reasonable to accept
that appointing persons of both sexes to both grades in recent
years would automatically eliminate the discriminatory nature
of the differences between the grades.
The recruitment of men to Grade C in recent years in no way
affects the fact that the claimant has been paid a lower rate
of pay, which has evolved from an exclusively female rate, for
work which is equal in value with Grade A Back-end Operators.
I note that of the 12 Grade A employees all are male except for
a single female Felt-Punch Operator. The Felt-Punch operation
was upgraded from Grade B in 1979 when a new more sophisticated
machine with higher output and requiring greater skills and
responsibility was introduced. I do not consider that either
the re-grading of Felt-Punch to Grade A or the appointment of
males to Grade C in recent years affect the fact that the rates
set for these grades were set for what were then exclusively
male and female grades. In these circumstances I cannot accept
that the fact that both males and females are currently
employed in each grade is sufficient to establish that the
difference in rates is based on grounds other than sex.
29. The Company also claims that the grading structure is
based on such objective factors as the degree of
responsibility, initiative and skill involved as well as the
degree of physical effort. However, no evidence has been
produced to support this claim. Based on my consideration of
the demands of the claimant's work and that of the Back-end
operators, which I found to be equal, and on my consideration
of the development of the grading structure in the previous
paragraph I do not accept the company case that the grading
structure is based on objective factors other than sex. I am
not satisfied therefore that these are grounds other than sex
to justify the payment of a lower rate to the claimant than to
the Back-end Operators.
30. Finally, the Company has argued under Section 2(3) of
the Act that there are reasons other than sex for the payment
to the claimant of the Grade B rate while she is doing
stamping/inspection work in that she is paid according to an
agreement which provides for the payment of a higher rate where
the employee spends more than 3 hours per day or 10 hours per
week at the higher rated work, which conditions apply equally
to all employees regardless of sex. The agreement also permits
the maintenance of the higher rate of pay when an employee is
doing lower rated work i.e. "acting down".
I have found that the claimant's work is like work with certain
of the Grade A comparators. It follows that the claimant is
entitled to the Grade A rate of pay. As such under the
conditions applied to Operatives who are performing lower rated
work, she is entitled to maintain her Grade A rate while doing
Grade B work even though I consider her work on Grade B
Stamping/Inspection to be less demanding than her Ball Repair
work. It follows that there are no grounds other than sex for
paying the claimant the Grade B rate for stamping/inspection
work.
Recommendation:
31. In view of my foregoing conclusions the claimant is
entitled to the same rate of remuneration as Mr. J. Armstrong,
Mr. F. Craigey and Mr. L. Carolan. I recommend that she be
paid that rate with effect from February, 1985, the date she
commenced as a Grade C, Ball Repair Operative."
6. The Company appealed the Equality Officer's Recommendation to the
Labour Court by letter dated 21st December, 1987. The Court heard
the appeal on 11th April, 1988 and, following a visit to the
Company's premises to inspect the work of the claimant and
comparators, reconvened the hearing on 18th April, 1988. (The
Claimant has submitted an appeal to the Labour Court for
enforcement of the Equality officer's Recommendation). The
notices of appeal and the written submissions of the
parties to the appeal are attached as appendices to this
Determination. The parties enlarged on these submissions at the
hearings.
DETERMINATION:
7. The Court has carefully examined the submissions of both
parties and the comments which each has made on the other's
submissions. The Court has furthermore examined the work of
the claimant and the Back-End operators at first hand and
subsequently had a further hearing with both parties.
The Equality Officer found that the comparators' work was
divided into three separate operations and the comparators
rotate through these operations. The Equality Officer found that
the demands made on the claimant were less than the demands made on
the comparators when on the 1st operation (Inter mix), equal on the
2nd operation (mill and extruder) and more demanding on the 3rd
operation (Take off/Rheometer). The Court's view on examining the work
is that the demands made on the claimant are less than the demands
made on the comparators when on the 1st and 2nd operations in terms
of skill and physical effort and equal on the 3rd operation when
only Rheometer/Take off duties are involved.
On the basis of this examination and investigation the Court
accepts that there is validity in the first ground of the
Company's appeal. The claimant's work requires greater
concentration on detail over an extended period. However, overall
it makes less demands on the claimant than the range of duties,
which are performed in the Back-end, makes on the comparators.
The Court is satisifed therefore that the claimant is not
performing work of equal value with the work of the three named
comparators. The Court therefore decides that the Company's
appeal be upheld and determines accordingly.
Signed on behalf of the Labour Court
John M Horgan
14th July, 1988 Chairman
R.B./U.S.