DEP891

Labour Court Database __________________________________________________________________________________ File Number: AEP884 Case Number: DEP891 Section / Act: S8(1)AD Parties: UNIVERSITY COLLEGE CORK - and - IRISH TRANSPORT AND GENERAL WORKERS UNION

Subject:
Appeal by the College against, and by the Union for the implementation of, Equality Officer's Recommendation No. EP4/1988 concerning a claim by two named female Laboratory Aides for equal basic remuneration with seventeen named male Departmental Operatives.

Recommendation:
10. The Court has considered the recommendation of the Equality
Officer and also the submissions made by the parties. The Court
has also inspected the work of staff employed by the College and
who are concerned in the claim.

Having studied the procedures adopted by the Equality Officer in
carrying out her investigation the Court does not accept the claim
made by the College that she failed to apply the principles of
natural justice in not affording their representatives adequate
opportunity to defend the claims. In this connection the Court
has noted that management, while being aware that the work
inspections were being undertaken, did not request participation
and were not refused any opportunity to participate more fully
than they did in these inspections. The Court is also of the view
that had management been involved more fully in the work
inspections it would not have affected the outcome of the Equality
Officer's investigation.

Having inspected the work of the two claimants the Court considers
that they perform like work with each other in terms of Section 3
of the Act.

The Court is also satisfied that each of the claimants performs
work that is similar in nature within the meaning of Section 3(b)
of the Act with that performed by Dan Mc Carthy and Liam Bennett
(Glass and Apparatus Store), Tadhg Murphy (Dairy Microbiology),
Don Murray (La Retraite), Dan Murphy (Geography) and P. Deegan
(General Services). Arising from the Court's investigation of the
duties performed by each of the claimants and each of the


comparators the Court is satisfied that each of the claimants
performs work of equal value in terms of Section 3(c) of the Act
with that performed by each of the comparators including those
listed above.

The Court determines accordingly that the two named claimants
perform "like work" within the meeting of Section 3 of the Act and
should be paid the same hourly basic pay as the named Departmental
Operatives with effect from 20th February, 1984 or from the date
of recruitment where later.

The Court rejects the appeal by the College and determines that
the recommendation of the Equality Officer be implemented.

Division: Mr Fitzgerald Mr Shiel Ms Ni Mhurchu

Text of Document__________________________________________________________________

AEP884 DETERMINATION NO. DEP189

ANTI-DISCRIMINATION (PAY) ACT, 1974
SECTION 8(1)(A)


PARTIES: UNIVERSITY COLLEGE CORK
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)

and

IRISH TRANSPORT AND GENERAL WORKERS UNION

SUBJECT:
1. Appeal by the College against, and by the Union for the
implementation of, Equality Officer's Recommendation No. EP4/1988
concerning a claim by two named female Laboratory Aides for equal
basic remuneration with seventeen named male Departmental
Operatives.

BACKGROUND:
2. The claimants are employed as Laboratory Aides and are on a
scale of pay starting at £97.25 - 1st year to £112.21 - 5th year.
(Rates of pay effective from 1st March, 1985). Their hours of
duty are from 8.30 a.m. to 5.30 p.m. with a one hour lunch break.
Their main duty involves the cleaning of laboratory glassware,
equipment and benches, photocopying, collating material, assisting
at practicals and examinations, and some security related duties.
The seventeen male workers belong to the grade of Departmental
Operatives (which is a promotional grade) and their main duties
relate to the provision of ancillary services to the Departments
in which they are employed. They work a forty hour week and
receive £158.85 basic pay per week. Both the claimants and the
comparators require general clerical skills, organisation skills
and, in addition, the claimants and some of the male workers
require some minor laboratory skills. No specific educational
standard is required of the Departmental Operatives, although
relevant experience is taken into account. In the case of the
Laboratory Aides, the Intermediate Certificate or comparable
qualification is desirable.


3. On the 20th February, 1987, the Union requested an
investigation by an Equality Officer of a dispute concerning the
two Laboratory Aides for equal basic pay with seventeen named
Departmental Operatives. The Equality Officer's investigation of
the dispute commenced with meetings with both parties on the 20th
May, 1987. Submissions and job descriptions were received from
both parties and were exchanged between the parties on 2nd
October, 1987. Following a meeting with both parties on the 29th
October, 1987 the Equality Officer indicated that her inspection
of the work of the claimants and comparators would be undertaken
on the 9th, 10th and 11th November. The inspection continued on
the 9th and 10th December, 1987. The Union was represented at
these inspections. The College, stated that they would comment on
the Equality Officer's observations when her inspection was
completed. A final meeting was held with both parties on the 3rd
March, 1988. On the 23rd May, 1988, having completed her
investigation, the Equality Officer issued a recommendation. The
conclusions and recommendation of the Equality Officer are
attached as Appendix 1.

4. On the 14th June, 1988, the Union appealed to the Court
against the College's failure to implement the Equality Officer's
recommendation. The Federated Union of Employers on behalf of the
College advised the Court of their intention to appeal the
Equality Officer's recommendation by letter dated 1st July, 1988
(in accordance with Section 8(1) of the Act). The Court heard the
appeal in Cork on the 9th November, 1988.

5. The Union stated at the hearing that it considered the grounds
of appeal should relate only to the recommendation itself and not
take the form of a total re-examination and investigation of the
case. The Court stated that it would study the Equality Officer's
Recommendation and the grounds of the appeal. It would also
examine all submissions and evidence presented by the parties and
would consider the case on its merits.

6. The grounds of the College's appeal are:

(1) that the Equality Officer erred in law and in fact in
deciding that the claimants were performing like work
within the meaning of Section 3(b) of the Anti-
Discrimination Act (Pay) 1974 with each of the named male
comparators, excepting only Messrs. Cullen, Long and
McCarthy;

(2) that the Equality Officer erred in law and in fact in
deciding that the claimants were performing like work
within the meaning of Section 3(c) of the Act of 1974
with each of the named comparators.


(3) that the Equality Officer erred in law and in fact in
deciding that there are no grounds other than sex within
the meaning of Section 2(3) of the Act of 1974 for the
differences in pay between the claimants and their named
comparators;

(4) that the Equality Officer erred in law and in fact in
deciding that the claimants had an entitlement to equal
pay under the Act of 1974 with their named comparators;

(5) that the Equality Officer failed to apply the principles
of natural justice in failing to give the representatives
of the College adequate opportunity to defend the claims;

7. On the question "that the Equality Officer erred in law and in
fact in deciding that there was no grounds other than sex within
the meaning of Section 2(3) of the Act for the differences in pay
between the claimants and their named comparators", the College
indicated at the Court hearing that they no longer wished to
pursue this ground.

8. The written submissions made to the Court are in Appendices II
and III to this Determination. The parties enlarged on these
submissions at the Court hearing. The Union also supplied to the
Court a document concerning three points relating to:

(a) Breach of Labour Court procedure,
(b) Status of the appeal and
(c) Natural justice.

This document is attached as Appendix IV.

9. On the 6th and 7th December, 1988, the Court visited the
College. Prior to the visit, the College and the Union side
agreed the jobs to be inspected by the Court for the purposes of
comparison. They agreed that the jobs of the following
Departmental Operatives and Laboratory Aides would be inspected by
the Court:

Departmental Operatives

Tadhg Murphy, Liam Bennett, Don Murray, Patrick Deegan, Dan
Murphy, Tadhg Hurley, John Cullen.

Laboratory Aides

Agnes Porter, Jacqueline O'Brien.

The Court indicated that an inspection of the jobs, as agreed,
would suffice for its investigation.


DETERMINATION:
10. The Court has considered the recommendation of the Equality
Officer and also the submissions made by the parties. The Court
has also inspected the work of staff employed by the College and
who are concerned in the claim.

Having studied the procedures adopted by the Equality Officer in
carrying out her investigation the Court does not accept the claim
made by the College that she failed to apply the principles of
natural justice in not affording their representatives adequate
opportunity to defend the claims. In this connection the Court
has noted that management, while being aware that the work
inspections were being undertaken, did not request participation
and were not refused any opportunity to participate more fully
than they did in these inspections. The Court is also of the view
that had management been involved more fully in the work
inspections it would not have affected the outcome of the Equality
Officer's investigation.

Having inspected the work of the two claimants the Court considers
that they perform like work with each other in terms of Section 3
of the Act.

The Court is also satisfied that each of the claimants performs
work that is similar in nature within the meaning of Section 3(b)
of the Act with that performed by Dan Mc Carthy and Liam Bennett
(Glass and Apparatus Store), Tadhg Murphy (Dairy Microbiology),
Don Murray (La Retraite), Dan Murphy (Geography) and P. Deegan
(General Services). Arising from the Court's investigation of the
duties performed by each of the claimants and each of the


comparators the Court is satisfied that each of the claimants
performs work of equal value in terms of Section 3(c) of the Act
with that performed by each of the comparators including those
listed above.

The Court determines accordingly that the two named claimants
perform "like work" within the meeting of Section 3 of the Act and
should be paid the same hourly basic pay as the named Departmental
Operatives with effect from 20th February, 1984 or from the date
of recruitment where later.

The Court rejects the appeal by the College and determines that
the recommendation of the Equality Officer be implemented.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
__________________________
13th January, 1989. Deputy Chairman
T.O'D./J.C.


APPENDICES


Contents


1. Appendix 1 - Equality Officer's Conclusions and
Recommendation

2. Appendix 11 - Union's Submission

3. Appendix 111 - College's Submission

4. Appendix IV - Comments by Union on Procedures

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


APPENDIX 1

Equality Officer's Conclusions and Recommendation

Conclusions:

The Union claims that the work performed by the two Laboratory
Aides is like work in terms of section 3(b) and 3(c) of the Act
with that performed by the seventeen named Departmental
Operatives. Section 3(b) and 3(c) of the Act state that two
persons shall be regarded as employed on like work -

3(b) "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, or

3(c) 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."

Having examined the work performed by the male comparators I found
that they performed a variety of duties appropriate to the
different Departments to which they supply ancillary services.
Detailed descriptions of the work performed by each comparator,
prepared by me following an inspection of the work and agreed by
the Union and the College, are attached at Appendix III. A very
brief summary of the work performed by each of the male
comparators is as follows:-

(1) John Cullen and John Long both work exclusively with animals
which are required by students and doctors. Their work involves
feeding specific foods to animals, breeding them, cleaning cages,
post operative care etc. Both Operatives have performed this work
for many years.

(2) Kevin McCarthy works exclusively in the Post Room. He is
responsible for the successful operation of the Post Room and has
been there for many years.

(3) Dan McCarthy and Liam Bennett work full time in the Glass and
Apparatus Store. Basically, their work involves ordering goods as
required, checking and unpacking goods on arrival, pricing
individual items, issuing goods and keeping an account of them,
moving equipment, furniture, cylinders etc., collecting and
delivering post, photocopying, shredding and any other duties of a
general or specific nature appropriate to the Chemistry
Department, as directed by the Chief Technician. Both have been
performing the same work for many years.


(4) The following Departmental Operatives service particular
Departments:-

Jeremiah Scannell has worked in the Physics Department for 20
years,
Tadhg (Tim Murphy has worked in Dairy Microbiology for over 10
years,
Jack Sheehan has worked in Civil Engineering for approximately 15
years,
Dan Murphy has worked in the Geography Department for 9 years,
Daniel Hyde has worked in Electrical Engineering for 7 years,
Dan Rose has worked in Geology for 7 years,
Tim Hurley has worked in Biochemistry for 8 years,
Don Murray has worked in La Retraite servicing 8 small sections or
Departments viz. Accounts, Audio Visual Aides, Commerce Faculty,
Law, Management, Economics, Irish and An Teanglann, for 6 years.
Denis Murphy has worked in the Registrars Department for 7 years.

The service which they provide involves collecting and delivering
post, security related work viz. checking rooms, switching on and
off electrical appliances, unlocking doors, reporting faults,
arranging rooms for lectures and procuring projectors etc. as
required, photocopying and collating handouts for students,
manuals etc, monitoring and ordering stationery and other
requirements for the Department, preparing and cleaning
laboratories, cataloguing, roll marking, disposal of waste, and
any other duties that the Head of the Department requires. There
is quite a variation in the type and amount of work which they do.
This depends to a great extent on the direction of the Head of the
Department and on the aptitude and initiative of the Operative
himself.

(5) Paddy Deegan and Michael Sheehan work in the office of
Superintendent of General Services and have been there for several
years. Paddy Deegan deals with Keys, Furniture, Uniforms and
shares with the Clerical Assistant the distribution of wages
cheques, petty cash, lockers etc.
Michael Sheehan deals with clock cards, requisition forms, lost
property, charges for room hire, room bookings etc.

(6) Frank Landers works in the Staff House and was promoted to
that post in September, 1986. He services the Staff Common Room,
the President's Office, assists at conferrings, collects and
distributes post, books and arranges meeting rooms, arranges
delivery of stationery etc.

16. Detailed descriptions of the work performed by the two
Laboratory Aides as prepared by me following an inspection of the
work and agreed by both parties are attached at Appendix III. A
brief summary of the work performed by each is as follows:-


Agnes Porter

(a) Preparations for Organic Practicals
(b) Assisting at Practicals throughout the year
(c) Photocopying, Book Binding, Scanning, Duplicating etc.
(d) Cleaning and stocking lockers
(e) Deputising for Technician and locking up
(f) Special cleaning duties
(g) Assisting at Chemistry colloquims
(h) Going on errands
(i) Cleaning Winchesters
(j) Showing Departmental Operatives how to use photocopier etc.

Jacqueline O'Brien

(a) Dealing, as appropriate, with Glassware used in Department
(b) Photocopying, collating, binding manuals etc. and shredding
(c) Supplying Lecture Venues and Equipment to Professors, Doctors
etc.
(d) Ordering and checking goods received
(e) Providing name badges, (Kroy lettering machine)
(f) Copying references from books from library and returning same
(g) Preparing inventory for technical staff
(h) Performing all work necessary around Laboratory animals
(i) Cleaning of laboratory equipment, instruments etc.
(j) Dealing with supplies of Laboratory White Coats
(k) Assisting at examinations
(l) Performing roll calls at all lectures
(m) Laboratory duties concerning students, chemicals, solutions,
equipment etc.
(n) General duties viz. collecting and delivering post, answering
phone etc.
(o) Security related duties.

17. I note the College's argument that, in addition to the duties
described ante in respect of each individual male comparator, the
comparators, as Departmental Operatives, are liable to be
transferred to other duties. In evaluating work, for the purposes
of section 3 of the Act, an Equality Officer can only take into
account the work actually performed by each of the claimants and
the work actually performed by each of the male comparators. I
have, however, in the context of section 2(3) of the Act, given
full consideration to the College's arguments concerning the
liability of the males to perform other duties. My views in this
regard are set out in paragraph 22.

18. Having inspected the work performed by each of the claimants
and by each of the male comparators, details of which are given in
Appendix III, I am of the view that apart from John Cullen, John
Long and Kevin McCarthy, each of the Laboratory Aides and each of


the remaining male comparators perform work which may be
reasonably regarded as being similar in nature for the purpose of
section 3(b) of the Act.

19. The next point which I considered, in the context of section
3(b) of the Act, was whether or not the differences between the
work performed by each of the claimants and that performed by each
of the males named in Categories (3), (4), (5) and (6) above are
of small importance in relation to the work as a whole. In my
opinion an important difference is a difference which warrants a
difference in the rates of pay. In the case here concerned the
College has argued that while there may be some overlap between
the work performed by the Laboratory Aides and that performed by
Departmental Operatives, the Departmental Operatives are paid a
higher rate of pay because of their additional responsibility and
the flexibility attaching to the grade. Having examined the work
performed by each of the claimants and by each of the comparators
I am satisfied that the work performed by each of the claimants is
at least as responsible as that performed by each of the
comparators. Furthermore, I have found that not one of the male
comparators has, in fact, been called on to be flexible and,
therefore, flexibility cannot be taken into account as a factor in
terms of the work actually performed by them. I am satisfied,
therefore, that the differences claimed by the College as
justifying a difference in pay do not, in fact, exist insofar as
the work actually performed by each of the claimants and each of
the comparators is concerned. In addition, I have found no other
differences between the work performed by each of the claimants
and that performed by each of the males which would justify the
males being paid a higher rate.

20. In view of my findings in paragraph 18 and 19 ante, I am
satisfied that each of the claimants performs similar work with
that performed by each of the Departmental Operatives in question
and that the differences between the jobs are not significant. I,
therefore, consider that Ms. Porter and Ms. O'Brien perform like
work within the meaning of section 3(b) of the Act with that
performed by the named male comparators with the exception of
Messrs. Cullen, Long and McCarthy.

21. As I have established that the two claimants are employed on
like work within the terms of section 3(b) of the Act it is not
necessary for me to deal in detail with the issues raised under
section 3(c) of the Act. It may be useful to state, however, that
having examined and considered the work performed by each of the
claimants and each of the male comparators I am satisfied that the
work performed by each of the claimants is also like work in terms
of section 3(c) of the Act with that performed by each of the
comparators, including those named at Categories (1) and (2) viz.
John Cullen, John Long and Kevin McCarthy.


22. As each of the claimants performs like work in terms of
section 3 of the Act which that performed by each of the named
Departmental Operatives they are entitled to the same basic
remuneration as those operatives unless there are grounds other
than sex, within the meaning of section 2(3) of the Act, to
justify the payment of different rates. Section 2(3) of the Act
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."

I have considered, in the context of section 2(3) of the Act, the
College's argument that the Departmental Operatives have a
liability to be transferred to other Departments and that they are
remunerated on that basis. I am satisfied that each of the
comparators was assigned on the basis of his suitability to a
specific post and that each has been in his particular Department
for many years and has never been asked to transfer to other
duties. I cannot, therefore, accept as valid in the context of
section 2(3) of the Act, the College's arguments that the
liability of the comparators to be transferred constitutes grounds
other than sex which justifies the payment to them of a higher
basic rate than paid to the claimants.

Recommendation

23. In view of my conclusions in the preceding paragraphs and
having regard to section 8(5) of the Act, I recommend that the two
named claimants be paid the same hourly rate of basic pay as the
named Departmental Operatives with effect from 20th February,
1984, or from the date of recruitment where later.


UNION SUBMISSION

APPENDIX II

Introduction:

On 20th February 1987 a dispute concerning two female Laboratory
Aides employed by UCC was referred to the Equality Service of the
Labour Court by the ITGWU, for investigation.

Following an investigation, on 23rd May, 1988, the Equality
Officer issued a recommendation (EP4/1988) that the claimants were
entitled to the same hourly basic pay as the named comparators.

On 13th June, 1988, following no indication from the employer that
the recommendation would be implemented in full, the Union lodged
an appeal for implementation of the recommendation with the Labour
Court.

Subsequently, on July 1st, the FUE, on behalf of the employer,
lodged notice of appeal against the recommendation. This notice
set out 6 grounds of appeal which are being relied upon to
overturn the Equality Officer's recommendation.

It is our understanding, in line with previous practice by the
Labour Court, that in the event of the employer failing to show
sufficient grounds for the recommendation to be overturned, the
Union appeal for implementation will be successful.

We do not believe that sufficient grounds can be put before the
Court for an appeal to overturn the recommendation to be
successful.

Initially, however, we would like to draw the Court's attention to
some difficulties which appear to present themselves in this
appeal.

The employers representatives - the FUE - have only become
involved in this dispute since the issuing of the recommendation
by the Equality Officer. During the course of the investigation
UCC had represented themselves, and as is normal in such
procedures, had taken a position on certain aspects of the
investigation.

The grounds of appeal which have been lodged would appear to
represent an attempt, at this appeal stage, by the FUE to alter
the position taken by local management during the investigation.

While we will be outlining these problem areas in examining the
grounds of appeal, we would ask the Court to consider this point
and to comment on it in their determination.


We believe that this approach is taken to call into question the
credibility of the Equality Officer. The points of appeal being
relied upon will, in several instances, go directly against
details of fact which are included in the recommendation. We
cannot see any justification for measures of this nature.

Under Section 8(1)(a) of the Anti-Discrimination (Pay) Act, 1974,
the employer has the right, as they have done in this case, to
appeal:

"to the Court against the recommendation".

It is our belief, and one which has been supported by the Labour
Court itself in previous cases, that the recommendation is the
starting point in this appeal.

Sufficient grounds must be put forward to show that the
conclusions of the Equality Officer are incorrect if an appeal
against the recommendation is to be successful.

We would ask the Court to accept and adopt the reasoning of the
Court in Pretty Polly (Killarney) Ltd -V- ITGWU (DEP5/1979) where
it was said:

"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."

We would ask the Court to specifically address this issue in its
determination.

Grounds of Appeal
1. The first ground of appeal states:

"that the Equality Officer erred in law and in fact in
deciding that the claimants were performing like work within
the meaning of Section 3(b) of the Act of 1974 with each of
the named male comparators, excepting only Messrs Cullen,
Long and McCarthy."

In paragraph 15 of her recommendation the Equality Officer details
how she examined the work performed by the male comparators, drew
up detailed job descriptions and had these agreed by the Union and
the College.

This procedure was also followed with regard to the jobs performed
by the two claimants - Agnes Porter and Jacqueline O'Brien.


In paragraph 18 she concludes that the work of the claimants and
some of the comparators is similar in nature for the purpose of
Section 3(b) of the Act.

In paragraph 19 she states the following:

"the next point which I considered, in the context of Section
3(b) of the Act, was whether or not the differences between
the work performed by each of the claimants and that
performed by each of the males named in Categories (3), (4),
(5) and (6) above are of small importance in relation to the
work as a whole. In my opinion an important difference is a
difference which warrants a difference in the rates of pay.
In the case here concerned the College has argued that while
there may be some overlap between the work performed by the
Laboratory Aides and that performed by Departmental
Operatives, the Departmental Operatives are paid a higher
rate of pay because of their additional responsibility and
the flexibility attaching to the grade. Having examined the
work performed by each of the claimants and by each of the
comparators I am satisfied that the work performed by each of
the claimants is at least as responsible as that performed by
each of the comparators.

Furthermore, I have found that not one of the male
comparators has, in fact, been called on to be flexible and,
therefore flexibility cannot be taken into account as a
factor in terms of the work actually performed by them. I am
satisfied, therefore, that the differences claimed by the
College as justifying a difference in pay do not, in fact,
exist insofar as the work actually performed by each of the
claimants and each of the comparators is concerned. In
addition, I have found no other differences between the work
performed by each of the claimants and that performed by each
of the males which would justify the males being paid a
higher rate."

We can see that the Equality Officer has carefully considered the
evidence put forward, not only on behalf of the claimants, but
also the evidence put forward by the employer.

She has found that the evidence put forward by the employer is not
sufficient to support their contention that a finding of like work
should not be made.

She uses the test which has been approved by the Labour Court in
previous considerations of Section 3(b) of the 1974 Act - notably
the Toyota and Dowdall O'Mahony cases (DEP1/1986 and DEP6/1987).

This leads to the conclusion in paragraph 20 that there is a like
work situation in terms of Section 3(b) of the Act.


The ground of appeal now being put forward by the FUE can be seen
as totally groundless.

2. The second ground of appeal states:

"that the Equality Officer erred in law and in fact in
deciding that the claimants were performing like work within
the meaning of Section 3(c) of the Act of 1974 with each of
the named comparators".

Within the meaning of Section 3(c) of the Act of 1974 we would put
it to the Court that the Equality Officer must satisfy herself
that 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 paragraph 14 of her recommendation we can see that she has
quoted the relevant section of the legislation.

In paragraph 15 she relates how she drew up detailed job
descriptions, over a work inspection covering some six days, and
that these descriptions were agreed by both the Union and the
College.

In paragraph 21 she points out that having examined, and
considered the work performed by both the claimants and
comparators she is satisfied that the work performed by the
claimants is like work, in terms of Section 3(c) with the work
performed by the comparators.

It is clear that "fact" was established. Not only established,
but agreed with both parties. Following this stage, a
consideration of the "fact", in terms of the requirements
contained within Section 3(c) of the Act has led to a finding of
like work.

Again we have a ground of appeal which is not only totally without
foundation but one which contradicts the position adopted by the
College during the investigation.

3. The third ground of appeal states:

"that the Equality Officer erred in law and in fact in
deciding that there are no grounds other than sex within the
meaning of Section 2(3) of the Act of 1974 for the
differences in pay between the claimants and their named
comparators".


The issue of a defence under Section 2(3) is considered by the
Equality Officer in paragraph 22. This paragraph states:

"As each of the claimants performs like work in terms of
Section 3 of the Act with that performed by each of the named
Departmental Operatives they are entitled to the same basic
remuneration as those operatives unless there are grounds
other than sex, within the meaning of Section 2(3) of the
Act, to justify the payment of different rates. Section 2(3)
of the Act 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".

I have considered, in the context of Section 2(3) of the Act, the
College's argument that the Departmental Operatives have a
liability to be transferred to other Departments and that they are
remunerated on that basis. I am satisfied that each of the
comparators was assigned on the basis of his suitability to a
specific post and that each has been in his particular Department
for many years and has never been asked to transfer to other
duties. I cannot, therefore, accept as valid in the context of
Section 2(3) of the Act, the College's argument that the liability
of the comparators to be transferred constitutes grounds other
than sex which justifies the payment to them of a higher basic
rate than that paid to the claimants."

After stating the relevant provision, the Equality Officer tests
the defence put forward by the College and dismisses it in very
strong and emphatic terms.

We believe that the position taken by the Equality Officer is
totally correct and are sure that the Court will endorse it in
this case, as they have in previous, similar cases.

4. Three further grounds of appeal remain:

"that the Equality Officer erred in law and in fact in
deciding that the claimants had an entitlement to equal pay
under the Act of 1974 with their named comparators".

"that the Equality Officer failed to apply the principles of
natural justice in failing to give the representatives of the
College adequate opportunity to defend the claims".

"such other grounds as may arise during the course of the
proceedings".


Of these three, the first is non-specific, being covered by
earlier grounds, and indeed it is questionable whether or not it
should actually be included as a specific ground of appeal in its
own right.

The last is again very non-specific, and cannot be commented on
without sight of the full submission.

The fifth ground of appeal, however, is very specific. It is a
ground which deserves the serious consideration of this Court, and
we would ask the Court to specifically comment on its inclusion in
the determination.

This ground is surprising as it calls into question the conduct of
the investigation by the Equality Officer. This, in itself, is a
very serious charge.

What makes it particularly surprising is the fact that it is not
only unsustainable, but that it contradicts the position adopted
by the College during the Equality Officer's investigation.

If we look again at the recommendation we can see:

- in paragraphs 9, 10, 11, 12 and 13 a summary of the
College's case as presented to the Equality Officer;
- in paragraph 15, the noted agreement of the College to the
job descriptions prepared by the Equality Officer;
- in paragraph 17, the noted argument put forward by the
College in relation to liability to perform other duties;
- in paragraph 19, the noted argument put forward by the
College in relation to range of duties;
- in paragraph 22, the College defence under Section 2(3) of
the Act.

Where is there any indication of a lack of adequate
opportunity to defend the claims?

We have stated earlier that we believe this allegation may be
due to the non-involvement of the FUE at earlier stages in this
investigation. We would suggest that it is not acceptable that an
"appeal system" should automatically be put in place without
regard to the facts - especially when they are clearly set out in
the recommendation. To take this course, or to condone this
course of action, is to cast doubt on the integrity of the
investigating officer. If this is to be allowed to happen it can
only result in the value of the investigation process being called
into question.

We have already requested that grounds such as this should be
removed, and would again request its removal from this case - even
at this late stage.


Conclusion:
Chair, Members of the Court, at the outset of this appeal we asked
that you accept and adopt the reasoning of the Court in DEP5/1979
(Pretty Polly (Killarney) Ltd -V- ITGWU) and that the Court be
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.

What is before the Court in the grounds of appeal is a belated
attempt by the FUE to turn back the clock to before the
investigation. This type of action is not sufficient for an
appeal to succeed and is little more than being of a time wasting
nature.

We believe that we have responded sufficiently to the grounds of
appeal lodged by the FUE in July to prove beyond doubt to the
Court that they are groundless.

Accordingly we would ask the Court to refuse the appeal on behalf
of the College and to determine that the recommendation should be
implemented.

Thank you.


COLLEGE'S SUBMISSION

APPENDIX III

INTRODUCTION

Chairman, Members of the Court,
The Case before you today arises from the Equality Officer's
Recommendation No. EP8/1988.

In appealing this case the College considers that points of law
and points of fact arise which we are asking the Court to
consider. These points are outlined in details in this
submission.

We note that the Court will be investigating the position through
a work inspection. In this regard we ask that the points outlined
in this submission be considered in conjunction with the Equality
Officer's Recommendation.

In this submission we are suggesting that the Equality Officer's
conclusions under 3(b) and 3(c) are incorrect both in terms of an
interpretation of the Act and on points of fact. We submit,
therefore, that the investigation should constitute a review of
this claim in all its aspects.

1 Points of Law - Appeals

(i) In relation to statute law where there is an appeals
mechanism we submit that only one standard should be
accepted, that is the machinery of justice used in the
judicature. This is there to ensure that an appeal is not
confined to certain evidence or faults but in essence is a
review of the entire case.

Members of the Court will be aware that an appeal direct to
the High Court is on a point of law, and is by the process
called a "case stated." In this form of appeal the
findings of fact and that decision by a lower Court is
drawn up, and on the basis of this document the legal point
that arises is argued before the High Court. This method
of appeal is used when a binding decision on a point of law
is required, this usually being the interpretation of a
statute or regulation.

(ii) The Labour Court will also be aware that the other form of
appeal is where it is argued that the lower court came to a
wrong conclusion as to the facts, or as to the law
applicable or to both. It is well accepted and practice
that an appeal is like a new trial before a different
tribunal where the witnesses are heard again.


(iii) Other labour legislation, apart from the
Anti-Discrimination Pay Act, 1974 provides for appeals to
both the Labour Court and the Employment Appeals Tribunal
where Recommendations have been issued by either Equality
Officers or Rights Commissioners. In all such cases the
Appeal does mean a re-examination of the entire case.

(iv) The I.T.G.W.U. in its submission suggests that the Court
already accepts its view that the recommendation is the
starting point in this or any appeal. We submit that if
this was accepted it would amount to a confined examination
of a case on Appeal and not a re-examination of the entire
case. Accordingly, we request the Court to give this
matter consideration when determining its procedures for
dealing with this case.

2. Points of Law - Natural Justice

(i) While the Equality Officer obviously performed her work on
the investigation of this case in a very conscientious and
diligent manner, there does nevertheless appear to be a
breach of natural justice in relation to the procedures
adopted by the Equality Officer.

(ii) In Garrett v C.I.E. (U.D. 177/1980), which referred to
certain English cases in connection with natural justice,
the three basic requirements which had to be complied with
were -

(a) that the person should know the nature of the
accusation against him (what is being said)
(b) that he should be given an opportunity to state
his case, and
(c) that the tribunal must act in good faith.

(iii) In this case, as indeed in any other, natural justice does
require not merely that College Management has a chance to
state its case in detail, but it must know what exactly is
being said by the claimants and their representatives and
witnesses. In the absence of this situation the
requirements of natural justice we suggest are not
fulfilled by the investigation.

(iv) College Management
(a) were not involved with the work inspections
(b) did not hear the oral evidence of either claimants
or comparators
(c) did not therefore have an opportunity for cross
examination of witnesses heard by the Equality
Officer


(d) did not as a consequence have an opportunity to
either answer or supplement the evidence given.

(v) While the Equality Officer did supply her job descriptions
we submit this was insufficient to mend the deficiency in
terms of the strict requirements of natural justice in any
investigation.

3. Points of Law (interpretation) and Points of Fact that
arise from the Equality Officer's conclusions under
paragraphs 18 to 20 inclusive of the Recommendation -
Clause 3 (B)

(i) In treating all claimants' jobs as being equal within the
definition of like work, this led to misunderstanding which
should not exist at the commencement of an investigation.
Jobs being paid the same rate of pay and being equal within
the definition of 'like work' under the Anti Discrimination
Pay Act, 1974 are quite separate matters. In our view each
claimants job should be examined against each comparator.
To do otherwise is tantamount to taking an interpretation
of the act which is a very liberal one. Surely each
claimant is a claim in its own right in law and not part of
another or group claim.

(ii) Indeed the conclusion of the Equality Officer in deciding
that Messrs. Cullen, Long and McCarthy were not equal to
the other Departmental Operatives under Clause 3(B) clearly
establishes that jobs that are paid the same rate within a
grade do not necessarily constitute "like work" within the
strict criteria of Section 3(c) which the Equality Officer
considered to be unnecessary. To conclude that all the
claimants jobs were equal and some of the comparators jobs
were likewise equal to one another was in our view an
assumption and not an established fact. We ask the Court
to examine this point, which we suggest should identify
that an evaluation of each claimants and each comparators
job under Section 3(c) is necessary.

(iii) Indeed in paragraph 12 of the Recommendation it will be
noted that College Management stated that because of the
wider ranging skills and the high level of responsibility
of each post it was not sufficient to evaluate only certain
aspects of the work of any one Departmental Operative.

(iv) The Job Descriptions compiled by the Equality Officer
clearly illustrate that the jobs are not the same and,
therefore, should have been examined under 3(c) of the Act.


(v) In paragraph 19 the Equality Officer refers to the
difference in the work performed by the claimants and the
comparators. These are not specified and we, therefore,
contend that there is no evidence for the basis of her
conclusion that the differences were "of small importance
in relation to the work as a whole." Furthermore, the
justification used is that in her view "the work performed
by the claimants is at least as responsible as that
performed by each of the comparators." We submit that as
this is a factor under an equal value evaluation in Section
3(c) of the Act it cannot, therefore, be a basis for a
conclusion under 3(b). If this was allowed by the Court it
would in effect mean that the College or indeed any other
employer who would be faced with such reasoning would be
denied the right to argue on the factor "Responsibility."
We further submit that under the Act this can only reside
as a point for consideration under Section 3(c).

(vi) We reject also the conclusions that "no other differences
exist between the work performed by each of the claimants
and the comparators." Indeed it is so clear from the job
descriptions that the jobs are in essence so different in
content that the actual claims on "like work" can only be
properly evaluated under Section 3(c). This, however, was
not done by the Equality Officer who in paragraph 21 deemed
it not to be necessary.

These points are so fundamental to the application of this
Act that we ask the Court to consider:

(a) whether the job descriptions and the inspection
of the work confirms that visibly the jobs are
"of a similar nature" within the strict meaning
of like work under Section 3(b) of the Act. We
contend they are not the same and, therefore,
should be evaluated under 3(c) of the Act.

(b) whether it is a contradiction and not in strict
accordance with the requirements of "like work"
under the Act for the Equality Officer to
conclude that although Messrs. Cullen; Long and
McCarthy are deemed not to be performing like
work with the claimants under 3(b) of the Act it
is correct in law to conclude that they are
performing "like work" under Section 3(c)
even though no such evaluation clearly took
place. If it is suggested that it did then
paragraph 21 confirms otherwise.


(c) whether it is correct for the Equality Officer to
assume that the jobs in the comparator group of
Departmental Operatives were "like work" and that
the Laboratory Aides jobs were "like work." It
is our contention that all the jobs are so
different that only an evaluation under Section
3(c) of the Act could establish whether a case of
"like work" between the claimants and the
comparators existed. As this did not happen we
submit that the conclusions of the Equality
Officer are not valid within the meaning of the
Act and not reasonable having regard to skill,
physical effort, mental effort, responsibility
and working conditions.

4. Points that Arise under Section 3(c) of the Act.


(i) The outline job description submitted by College
Management merely covered the range of work and not the
actual details of all elements of the work of different
persons within the grades. While the Equality Officer
prepared job descriptions and these were accepted by
College Management, this is only the commencement of the
process. This is no way demonstrates that, as already
mentioned, natural justice was adhered to. Neither does
it establish that the conclusions of the Equality Officer
were based on an objective assessment of the case.
Indeed, the very nature of this appeal is that we propose
to show that the Equality Officer's judgement and
conclusions were not reasonable or valid having regard to
the strict requirements of the Act on which the claims of
"like work" are based.

While the Unions claim was based on Section 3(b) and 3(c)
of the Act we note that "like work" is defined as follows:

3(b) "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."

3(c) "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."


We have already put a submission to the Court in relation
to the findings under Section 3(b). As this refers to
"work of a similar nature" it will be appreciated by the
Court that the word similar means "much the same." We
submit that apart from the Job Descriptions demonstrating
that this is not the case, the Union in making its claim
also under Section 3(c) anticipated that this would be the
basis of an examination by the Equality Officer. Indeed
the Union submission confirms this as is evidenced by
paragraph 7 of the Equality Officer's Recommendation where
it makes a submission under 3(c) on:

- Skill
- Physical Effort
- Mental Effort
- Responsibility
- Working Conditions

As indicated in paragraph 4(i) ante we accept the outline
job descriptions prepared by the Equality Officer.
However, we do not agree with the summaries contained in
paragraphs 15 to 16 inclusive as they convey an unclear
picture of the content of the work of each claimant and
each comparator.

5. Comparisons of posts under 3(c) of the Act

(i) Skill

The same general level of education would in our view
satisfy any of these jobs and we accept that the claimants
and the comparators are equal on this. In relation,
however, to training and experience we submit that, apart
from the particular characteristics of both the claimants
and comparators jobs, the training /experience required
for the comparators includes security work and, as pointed
out by the Union in paragraph 7 of the Equality Officer's
recommendation, their experience in this area is taken
into account, Because, in all cases they are responsible
for their own areas and must be able to work without
direct supervision, the training/experience gained as
General Attendants is deemed essential for their posts.
The claimants, on the other hand, work under close
supervision and staff in these posts have been recruited
without any previous work experience. As will be gleaned
from the following details the comparators, in addition to
their security responsibilities, require a variety of
skills in order to perform the duties of their posts. In
the case of John Cullen and John Long they require
knowledge/skills concerning:-


- controlled environmental conditions for
laboratory animals

- breeding of laboratory animals

- diets and feeding systems

- care of sick animals

- mating of laboratory animals

- sexing of laboratory animals

- preparation of litters

- hygiene

- fumigation

- post operative care

- anesthethising

In the case of Kevin McCarthy he requires:-

- organisational and planning skills

- supervising skills

- clerical skills

- knowledge of college faculties

- knowledge of postal systems

- the ability to deal with problems that
arise

- knowledge of the location of over 800
staff members in the College

- knowledge of "An Post" requirements

In the case of Dan McCarthy and Liam Bennett they
require:


- knowledge/skills in Ordering procedure

- " Control of stocks

- " Pricing of Stocks

- " Records Systems

- " Inward goods
procedures and
documentation

- " Stock issues

In the case of Jeremiah Scannell he is involved with a
high security area which has a Nuclear Reactor for
experiments. He is required to wear a Radioactive badge
when handling radiation material.

In the case of Tim Murphy he must have knowledge of the
highly sensitive area for which he has a security role.
He is required to have more than a general knowledge of
chemicals and gases used because of the handling
procedures that are necessary.

In the case of Jack Sheehan he has a heavy security
responsibility and, therefore, knowledge of the location
of equipment is vital to his role. Being, in common with
others, a keyholder he has a major role in his Department.
In the case of Dan Murphy he has to have significant
skills for the important clerical work relating to Maps.
Customs clearance duties also involve particular knowledge
of a high degree. Film projection skills arise in this
work. Once again, security is a key role.

In the case of Dan Hyde he has to have a knowledge of
Customs clearance. Mr. Hyde has projectionist skills
which are utilised within the Department. Once again
security for the Department is a key role.

In the case of Dan Rose he requires clerical skills and a
wide knowledge of geological equipment and granite and
other geological materials.

In the case of Tim Hurley he has to have a high degree of
knowledge about chemicals. He has to have all the
knowledge required for the disposal of radioactive
isothopes. He also has to have a keen knowledge of
animals.


In the case of Don Murray he has a security responsibility
for a building housing eight different Departments. He,
therefore, has to have knowledge of equipment, people etc.
He is involved with over 500,000 units of copied material
per year and, therefore, has to use planning and
organisational skills to a high degree.

In the case of Denis Murphy he has to have the necessary
knowledge and skills relating to protocol; procedure;
organisation and supervision of significant events and
V.I.P. visits in the College Calendar.

In the case of Michael Sheehan he has to utilise
organisational skills to a high degree. He has to have
skills relation to procedures regarding special events and
planning for important College services.

In the case of Frank Landers he has to have the necessary
skills relating to protocol; procedure; organisation and
the supervision of significant events and V.I.P. visits in
the College calendar.

Conclusion

With regard, therefore, to skill we submit that while the
claimants are equal to each comparator on education they
have a lower skill element on training/experience and
knowledge. Accordingly we conclude that Agnes Porter and
Jacqueline O'Brien do not have the same demands on skill
as any of the comparators.

(ii) Physical Effort

In all cases the comparators are involved with greater
physical effort in moving furniture, clearing of animal
cages, the carrying of post bags, the shifting of gas and
other cylinders - some to 4th floor of Science Building -
and the movement of lead containers. These duties
together with the security role which they perform in the
areas under their control calls for more stamina than the
duties of the claimants.

Conclusion

We submit that there is no evidence to support a claim
that the claimants have the same degree of physical effort
in their work.


(iii) Mental Effort

In another case EP3/1988 the same Equality Officer on a
case with this University did identify some of the mental
demands in Security work such as:

- Vigilance

- Judgement

- Initiative

- Concentration

- Alertness

There are other mental demands that arise in the Security
aspect of Departmental Operatives (all comparators) work
which are:

- Accuracy

- Communication

- Knowledge

Unlike in the case of the claimants who work under direct
supervision, the comparators are responsible for their own
areas and thus these attributes are used to a much higher
degree. While we can identify this security aspect in
each comparators job the Dan Hyde Job Description produced
by the Equality Officer clearly illustrates what is
involved.

Concentration

The extent of the higher degree of concentration involved
in the comparators jobs is evidenced by some of the
following brief examples.

John Cullen & John Long

- Mating, breeding and sexing of animals
- care of sick animals

- Anaesthetising animals before
operations


Kevin McCarthy

- Sorting up to 6/7/ bags of mail each day

- Weighing items and pricing in accordance
with An Post regulations

Dan McCarthy & Liam Bennett

- Stock Pricing and control

- Inward goods checking

- Handling chemical and gas cylinders in a
Storage Area

Jeremiah Scannell

- Handling radioactive materials

- Issue of lecture notes and answer sheets

Tim Murphy

- Handling of gas cylinders and chemicals in
transit from stores to the Laboratories.

Jack Sheehan

- Special requirements related to the manning
of the drawing offices.

Dan Murphy

- Projection 16 mm films

- Storage of thousands of Maps of indexing of
same.

Dan Hyde

- Very heavy security presence for a large
Department - 230 students.

- Preparation of technical items for
dispatch.

Dan Rose

- Ensuring the proper care and storage of
expensive equipment e.g. microscopes.


- Proper storage of different grades of
geological material.

Tim Hurley

- Handling procedure of an extensive range of
chemicals in stores and other areas.

- Disposals of radioactive isothopes.

Don Murray

- A very heavy security presence for 8
departments.

- Exceptionally heavy photocopying output -
500,000 units per year serving 8
Departments.

Denis Murphy

- Diverse range of activities relating to
meetings and other special events. Has to
provide services to strict timetables.

Paddy Deegan

- Issue of keys (holder of master keys) for
the entire University.

- Storage; distribution and audit of
furniture stocks for the entire University.

Michael Sheehan

- Records; examination scripts and other
special category items pass through him in
the course of his work.

Frank Landers

- Special protocol role with diverse
activities many of which involve
V.I.P./Special events with strict
timetable.

These examples illustrate the degree of knowledge and
skill necessary to carry out the duties of these posts.


The nature of the duties and the role of the comparators
in their respective areas call, also, for accuracy and
communication skills and numerous examples of the exercise
of these skills can be quoted.

Conclusion

We submit that the degree of mental effort demanded by the
claimants jobs is not as high as that of any of the
comparators.

(iv) Responsibility

We refer to paragraph 19 of the Equality Officer's
recommendation and to paragraph 3(v) of this submission
concerning the question of the level of responsibility
between the claimants work and that of the comparators.
While clearly all posts have a degree of responsibility
there are a number of significant points which
demonstrates the high level of responsibility in the
comparators posts, for example;

(1) the Laboratory Aides work under direct
supervision whereas the Departmental
Operatives have no direct supervision in the
day to day running of the areas for which they
are responsible.

(2) the comparators are responsible for their own
areas, whereas the claimants are not.

(3) most of the comparators have a security
responsibility for total Departments and in
some areas cases multiple Departments.

There are certain duties which both the claimants and some
comparators perform such as photocopying and the setting
out of Laboratories. However, in the other main activity
of the claimants which is glassware cleaning there is no
direct comparison with the comparators. There are special
responsibilities of the comparators for which there is no
similar degree of responsibility amongst the claimants,
which can be highlighted by some of these examples:

John Cullen & John Long

Responsibility for:

- Maintenance of controlled environment to
specific standards.


- Mating, breeding and sexing of animals.

- Dietary aspects.

- Care of sick animals.

- Anaesthetising animals.

- Post Operative
care.

Kevin McCarthy

- Supervision of the Post Room.

- Postal System for the entire College.

- Expenditure of up to £2,500 per week.

Dan McCarthy & Liam Bennett

- Stock audit and monitoring.

- Stock pricing as part of budgetary control.

- Inwards good checking (value of over
£80,000 per annum).

- 450 different types of stores to be issued
etc.

Jeremiah Scannell

- Movement of radioactive material.

- Operation of an engraving machine.

- Security responsibility for a building
housing a Nuclear Reactor.

Tim Murphy

- Movement of special gases and chemicals
from stores to Laboratories.

- Ordering of a wide range of products from
suppliers.

- Cash handling.


- Responsible for monitoring levels and
reordering of stationery, alcohol,
industrial gases, compressed air, oxygen
and chemicals. Controls issue of alcohol
to laboratories and keeps a record of
issues.

Jack Sheehan

- Examination Security.

- Storage and retrieval of specialised
equipment.

Dan Murphy

- Responsible for indexing and filing of
thousands of maps. Retrieval of same as
required.

- Production of Annual Geographical Journal.

- Operates 16 mm film projector.

- Customs clearance.

Dan Hyde

- Packaging of technical items for postage.

- Demonstrations on operation of visual aids.

- Cash Handling.

- Records of students of a special category.

Dan Rose

- Responsible for storage of special
equipment such as microscopes; clinometers
etc.

- Responsible for granite store and
geological materials used in Department.


Tim Hurley

- Responsible for disposal of radioactive
waste from all departments of College which
are sent to the department for processing
in a special disposal unit. He is
responsible for ensuring that the disposal
operation conforms to the rigid conditions
laid down.

- Responsible for switching on distillation
units and checking cold rooms each morning.

- Responsible for equipment stores which
includes chemicals.

- Keeps index of staff up to date.

- Prices issues of chemicals and stores.

- Checks goods received and Advice otes which
are checked for Invoice payment.

- Monitors usage and ordering of gas
cylinders. Collects item from delivery
lorry and hoists to 2nd floor by external
hoist (9/10 cylinders every six weeks).

- Responsible for solvent store and materials
such as acetone, chloroform and various
acids.

Don Murray

- Responsible for servicing 8 departments.

- Providing security service for 8
departments.

Denis Murphy

- Major organisational role for all special
events in the College Calendar.

Paddy Deegan

- Responsible for every key in the University
- also a master key holder.

- Furniture responsibility for the
University.


Michael Sheehan

- Record of N.U.I. letter.

- Record of Examination Scripts posted.

- Use of Kroy Typsetter.

- Responsibility for Lost Property.

Frank Landers

- Responsibility for security in the Staff
Office and President's Buildings.

- Special responsibility with regard to
Governing Body Meetings, Conferrings and
other special events.

- Clerical duties for Cork University Press.

Conclusions

Having regard to the experience necessary to carry out
their duties; the initiative and self motivation required
to carry out their jobs under indirect supervision; the
accuracy that is required to carry out the work; the
necessity for communication with staff, students,
suppliers and visitors; the degree of responsibility
vested in each comparator under several headings such as
security, teaching aids, specialised equipment, control,
stocks, movement of stores, radioactive material, records
and organisation, conferrings and other important
functions in the College calendar, goods Inward receipt,
master keys, furniture stocks etc. as outlined in 5(iv)
above we submit that the level of responsibility for the
comparator posts exceeds that of the claimants who work
under direct supervision.

(v) Working Conditions

Having regard to factors such as conditions; safety; risk
of accidents we accept that the claimants work is equal to
that of the comparators under this heading with the
exception of:


- John Cullen & John Long

- Dan McCarthy & Liam Bennett

- Jeremiah Scannell

- Tadhg Murphy

- Tim Murphy

6. SUMMARY

(i) We submit that this or any appeal must be a review of the
entire case and not a confined investigation as emphasised
by the Union.

(ii) While we again commend the Equality Officer for the
extensive examination of this case we nevertheless
consider the judgement and conclusion under 3(b) to be
incorrect in law and in fact and ask the Court to find
accordingly.

(iii) Having regard to the detailed submission which we have
made under 3(c), which was not examined under this Section
of the Act by the Equality Officer, we ask the Court to
endorse our conclusions that the claimants Ms. Porter and
Ms. O'Brien are not equal to any of the individual
comparators on skill; physical effort, mental effort,
responsibility or working conditions in the context of
"like work" as prescribed under Section 3(c) of the Act.


APPENDIX IV


Chair, Members of the Court.

Before formally presenting our submissions to the Court there are
three preliminary points which we feel we must address to the
Court.

These preliminary points are not being raised in a flippant
manner, but rather are being brought to your attention because we
believe them to be of significant importance in how this hearing
should continue.

In fact we will be putting it to the Court that several of them
are sufficiently crucial to require consideration by the Court at
this time.

The three points which we wish to raise are:

firstly, the breach of Labour Court procedures;
secondly, the status of the appeal; and
finally, the points of law concerning natural justice.

1. Breach of Labour Court Procedures

In April, 1987 the Labour Court issued procedures covering use of
the Equality Legislation. We welcomed this initiative because the
processing of casework had become more complex and some
clarification was needed to ensure users adopted the same
procedural methods.

Our concern prior to April, 1987 had been primarily in the area of
appeals before the Court, where we only had sight of the other
party's submission immediately prior to the Hearing. Within the
procedures it is required that the parties lodge written
submissions with the Court and "swop" submissions between the
parties seven days prior to the Hearing.

We accepted the discipline required by this, and consistently in
every case in which we were involved over the last 18 months have
abided by this procedural requirement.

Not so the employers or their representatives. They may supply
the Court with their submissions some days before the Hearing but,
though we supply them with our submissions within the timespan
required, they do not reciprocate. Inevitably, we are back where
we were prior to the issuing of the procedures, but with a further
worsening of our position in that they have access to our
submission for 7 days, and can in the interim tailor their
submission to it, prior to the Hearing.


In this particular case it can readily be seen that this is what
has happened. Our particular concern is that the prosecution
side, so to speak, have had sight of the defence document before
the wrote their presentation.

We believe that this problem can only be resolved in a wider
forum, and indeed we have initiated discussions in an attempt to
rectify a situation which can only put the members that we
represent at a considerable disadvantage.

However, we must ask the Court to take consideration of this point
in their hearing of this case.

2. Status of the Appeal

The point has been made to the Court that this appeal should take
the form of a total re-examination and investigation of the case.

This point we see as being crucial. Were the Court to determine
that this appeal should be a total re-investigation and
re-examination of the dispute we would have no option but to seek
an adjournment to allow us to prepare sufficiently detailed
submissions. It is only fair to point out to the Court that such
an adjournment would have to be of eight to twelve weeks duration,
and the re-convened hearing would have to be allowed several days.

But it is our opinion that the status of this appeal is not so
wideranging. It must be borne in mind that the legislative
procedures involved in a case under the Anti-Discrimination (Pay)
Act, of 1974 are somewhat unique.

We cannot ignore that an investigation has been carried out by an
Officer of the Court in accordance with the legislation. We
cannot ignore that the Officer of the Court, in conducting this
investigation, has not only ascertained the facts of the dispute,
but at each point in the investigation has looked for, and
received, the agreement of both parties as to their satisfaction
of what she had done.

Indeed the Supreme Court Judgement on Martin .v. North Western
Health Board, delivered on 21.12.1987, has to some degree
clarified the issue here for the Labour court.

In that judgement the Supreme Court accepted that the legal
procedures commence in a relatively informal form. They suggested
that Equality Officers, in their Recommendations, should set out
the facts as found, and in short terms, the evidence upon which
they have been found. If a party appealing a recommendation of an
Equality Officer to the Labour Court seeks to put in issue any of
the facts so found they should unequivocally do so in their notice
of appeal.


It is clear, we believe, that the highest Court in the land has
accepted the validity of the role of the Equality Officer in the
investigation process, and has also accepted the fact that the
Labour court hearing should revolve around the accuracy of the
Equality Officer's investigation.

3. Natural Justice points of law

Again we would put this point to the Court as a crucial point. If
it is accepted by the Court that the procedures laid down by both
the Act itself and the Labour Court, and which, as we will show
have been faithfully adopted by the Equality Officer, do actually
constitute a breach of natural justice sufficient to warrant a
re-investigation of the dispute, then we would have no option but
to request an adjournment to allow us time to prepared suitably
detailed submissions for the consideration of the Court.

It would be our interpretation of the points made to the Court
that it would be necessary for the Equality Officer to almost give
her finding to both parties prior to the issuing of a
recommendation, and to allow either party the opportunity -
however long that might take - to attempt to persuade her to alter
her decision before a recommendation could issue.

We believe that what is being put before the Court is spurious,
and that the inference of natural justice goes way beyond the
quoted precedent of Garrett .v. C.I.E..

SUMMARY

We have raised three procedural points, one which we have only
asked the Court to note; and two which we see of crucial
importance in how this hearing should progress.

We have explained our reasoning on these issues you, and would ask
that you consider these issues before continuing with the hearing.