DEP892

Labour Court Database __________________________________________________________________________________ File Number: AEP883 Case Number: DEP892 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. EP3/1988 concerning a claim by twelve named Female House Attendants for the same basic hourly rate of pay as two named male General Attendants.

Recommendation:
11. The Court has studied the recommendation of the Equality
Officer and has considered the submissions made by both 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 an adequate
opportunity to defend the claims. In this connection the Court
notes that management while being aware that 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 of the view also that had
management been involved in the work inspections, it would not
have affected the outcome of the Equality Officer's investigation.

Having studied all the evidence in this case the Court considers
that all the claimants perform like work with each other in terms
of Section 3 of the Act. The Court therefore concurs with the
view of the Equality Officer that it was sufficient, in order to
establish an entitlement to equal pay, to select the work
performed by any one of the claimants for the purpose of
comparison.


The Court does not agree however, with the Equality Officer's
conclusion that the work of some of the claimants is of a similar
nature in terms of Section 3(b) of the Act to that performed by
Mr. Walsh. The Court does not accept that the work of the
claimants - which involves, in the main, cleaning duties - is of a
similar nature to that of Mr. Walsh whose work is divided between
postal and security duties.

The Court concurs however with the findings of the Equality
Officer that the work of the twelve claimants is equal in value to
that performed by Mr. Walsh in terms of Section 3(c) of the Act.
Accordingly the Court determines that each of the claimants is
entitled to the same hourly basic pay as Mr. Walsh 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 by the Equality Officer in relation to the
twelve claimants and Mr. Michael Walsh be now implemented.

Division: Mr Fitzgerald Mr Shiel Ms Ni Mhurchu

Text of Document__________________________________________________________________

AEP883 DETERMINATION NO. DEP289

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. EP3/1988
concerning a claim by twelve named Female House Attendants for the
same basic hourly rate of pay as two named male General
Attendants.

BACKGROUND:
2. The claimants are employed as House Attendants and are paid
£104.77 in respect of a 37½ hour week. Their main duty involves
cleaning work. The two male workers belong to the grade of
General Attendant whose work involves postal duties and work of a
security nature. There are approximately 40 General Attendants in
the grade but only the two named comparators are working
exclusively on day work. They work a forty hour week and receive
£139.34 basic pay per week. (Rates of pay effective from 1st
March, 1985).

3. On the 20th February, 1987, the Union requested an
investigation by an Equality Officer of a dispute concerning
twelve House Attendants for equal basic pay with two named General
Attendants. A joint preliminary hearing of the dispute was held
on the 20th May, 1987. Submissions and job descriptions were
received from the Union in August, 1987 and from the College in
September,1987. Following a meeting with both parties on the 29th
October, 1987 the Equality Officer commenced an inspection of the
work and continued on the 30th October, and 10th November, 1987.
The Union was represented at these inspections. The College,
stated that it would comment on the Equality Officer's
observations. A final meeting was held with both parties on
Thursday 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 in 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 said that it would study the Equality Officer's
Recommendation and the grounds of 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:

(i) that the Equality Officer erred in law and in fact in
treating the claimants as a group for the purposes of
investigation of the claims;

(ii) 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 (Pay) Act of 1974 with the named
comparator, Michael Walsh;

(iii) 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 the named comparator, Michael Coughlan;

(iv) 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 the named comparator, Michael Walsh;

(v) 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 the named comparator, Michael Coughlan;

(vi) 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 the named
comparator, Michael Walsh. The College subsequently
withdrew this ground of appeal at the Court hearing.


(vii) 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 the named
comparator, Michael Coughlan. The College subsequently
withdrew this ground of appeal at the Court hearing.

(viii)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 the named comparators,
Michael Walsh and Michael Coughlan;

(ix) that 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. The College submitted that an appeal must entail a review of
the entire case. It also felt that there was an over-emphasis in
the Equality Officer's report on the "miscellaneous" aspect of the
duties examined rather than the "core." For example, the security
aspect of Mr. Walsh's job was not given adequate attention. The
submission made by the College to the Court contained, they said,
more specific information not mentioned in the Equality Officer's
report.

8. The Union contended that the Equality Officer undertook a
comprehensive review of the work of the comparators and claimants
over a period of four days. The representatives of the College
subsequently agreed the job descriptions. As all the claimants
performed the same type of work, the Equality Officer was correct
in chosing to study the work done by one House Attendant in order
to establish an entitlement to equal pay and this was accepted by
the College.

9. The written submissions made to the Court are in Appendices 11
and 111 to this Determination. The parties enlarged on these
submissions at the Court hearing. The Union also produced to the
Court a document concerning three points in relation to:

(a) Breach of Labour Court procedure,

(b) Status of the appeal and

(c) Natural justice.

This document is attached as appendix 1V.


10. On the 10th November, 1988 the Court visited the College.
Prior to the visit, the College and the Union side agreed which
jobs should be looked at for the purposes of comparison. They
agreed that the jobs of the following House Attendants should be
inspected by the Court:- Ms. S. Murphy, Ms. A. Allen, Ms. A
Struthers. They agreed that the work of the male comparator, Mr.
Walsh, should also be inspected.

The Court indicated that an examination of these jobs would
suffice for the purpose its investigation.

DETERMINATION:
11. The Court has studied the recommendation of the Equality
Officer and has considered the submissions made by both 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 an adequate
opportunity to defend the claims. In this connection the Court
notes that management while being aware that 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 of the view also that had
management been involved in the work inspections, it would not
have affected the outcome of the Equality Officer's investigation.

Having studied all the evidence in this case the Court considers
that all the claimants perform like work with each other in terms
of Section 3 of the Act. The Court therefore concurs with the
view of the Equality Officer that it was sufficient, in order to
establish an entitlement to equal pay, to select the work
performed by any one of the claimants for the purpose of
comparison.


The Court does not agree however, with the Equality Officer's
conclusion that the work of some of the claimants is of a similar
nature in terms of Section 3(b) of the Act to that performed by
Mr. Walsh. The Court does not accept that the work of the
claimants - which involves, in the main, cleaning duties - is of a
similar nature to that of Mr. Walsh whose work is divided between
postal and security duties.

The Court concurs however with the findings of the Equality
Officer that the work of the twelve claimants is equal in value to
that performed by Mr. Walsh in terms of Section 3(c) of the Act.
Accordingly the Court determines that each of the claimants is
entitled to the same hourly basic pay as Mr. Walsh 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 by the Equality Officer in relation to the
twelve claimants and Mr. Michael Walsh be now implemented.
~
Signed on behalf of the Labour Court

Nicholas Fitzgerald
______________________
13th January, 1989 Deputy Chairman.
T.O'D./J.C.


APPENDICES


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

2. Appendix 2 - College's Submission

3. Appendix 3 - Union's Submission

4. Appendix 4 - Union Document concerning breach of
Labour Court procedures, status of the
appeal, and points of law concerning
natural justice.

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


APPENDIX 1

EQUALITY OFFICER'S CONCLUSIONS AND RECOMMENDATION


Conclusions of Equality Officer:

12. The Union claims that the work performed by the 12 named House
Attendants is like work in terms of section 3(b) and 3(c) of the
Act with that performed by the 2 named General Attendants.
Section 3(b) and 3(c) of the Act stated 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."

13. On the basis of my work inspection I prepared detailed job
descriptions of the work performed by the claimants and the male
comparators and these are attached at Appendix III. Comments made
by the Union on these job descriptions are set out in paragraph 7
ante. U.C.C. makes no significant comments on the descriptions.

I found that the claimants perform a variety of different duties
connected with cleaning and the two males perform two specific day
time jobs. A brief summary of the work performed by each claimant
and by each of the two males is as follows:-

Ms. A. Struthers is a House Attendant in Physiology Department.
The area which she has to sweep/wash/vacuum/polish and dust
includes lecture theatres, offices, laboratories, doctor's rooms,
tutorial rooms etc. in addition to the main entrance hall,
corridors etc. She also sweeps and hoses 2 small yards. The
benches in the laboratories get particularly dirty after
experiments on frogs etc. and the dust bins which she empties
often contain syringes, broken glass tubes etc.

Ms. R. O'Sullivan workers in Dairy Microbiology. Her job involves
the constant washing of glassware which comes to her from that
Department, and which was used for practical classes and research.


It comes in large containers each containing hundreds of glasses
and tubes of all sizes. The glass tubes which had been used for
cultures must be boiled and scrubbed, those containing acid must
be treated with caution. Labels are particularly difficult to
remove and the smell from all the glass ware is quite repugnant.
In addition, she makes tea for the Professor, keeps her work area
clean and assists students regarding glassware requests. Her job
necessitates standing at the sinks all day.

Ms. Rita Scully is a House Attendant in Chemistry Department. She
washes, in a specific manner, hundreds of large bottles
(Winchesters) which contained acid; she washes lockers and their
contents in 4 laboratories after 8 week term; she checks that the
contents of every locker - 96 in all - is as per list; she washes
the benches and sinks in each laboratory regularly. She has to be
on constant look-out for broken glass on benches and in lockers
and has to take care when dealing with dangerous chemicals. She
also cleans the fume hoods and sometimes assists the Laboratory
Aide with her work.

Ms. K. Forde and Ms. Lenihan are House Attendants in Biochemistry
which is situated in the Lee Maltings.

Ms. Forde cleans 4 laboratories, lecture rooms, common room,
computer room, stores and photocopying room and dusts the
radioactive laboratory. She collects tea money from staff
amounting to about £35 per 2 months and buys the necessary tea,
coffee, sugar, milk, etc and every day makes and serves tea/coffee
to 7 people. She keeps the stores dusted and is familiar with its
contents and hands out items, apart from chemicals, to students as
required. She does some collating, stapling, answers the
telephone, collects white coats and sends them to cleaners and
helps out with anything as required.

Ms. Lenihan spends a considerable proportion of her day washing
glassware which was used during the previous day's class attended
by 150 students. Each glass and tube has to be washed in a
particular manner. When dry she stacks them in appropriate
drawers and shelves. She also washes test tubes, tweezers and
other instruments. In addition she cleans the laboratories and
prep. room including 50 sinks and taps. She collects tea money
and buys the required tea, coffee, milk etc and makes tea/coffee
for staff twice per day.

Ms. P. Cook, on a part time basis since March, 1987, and Mrs. N.
O'Sullivan share cleaning duties in the Staff House and also make
tea/coffee for office staff and meetings, collect and wash dirty
cups from offices, common room and President's rooms and return
cups when washed. In addition, they also perform the ancillary
duties performed by Ms. A. Allen and others as described in the
following paragraph.


A number of the College Departments are located in a number of
houses in the vicinity of the College. The remaining five
claimants viz. Ms. A. Allen, Ms. Maura O'Connell, Ms. Maureen
O'Connell, Ms. L. Dennehy, Ms. S. Murphy, and until March, 1987
Ms. P. Cook who is referred to in the previous paragraph, have
specific houses allocated to them in which they perform all
cleaning duties including cleaning of stairs, hallways, offices,
lecture rooms, toilets and ancillary duties including washing
towels, stocking toilets, keeping stocks of cleaning materials,
emptying dust bins, depositing bags of rubbish at collection
points etc. They each have a vacuum cleaner and other cleaning
aides and have to carry them from house to house as required.

They also report maintenance faults, switch on/off electrical
appliances and stay alert for unauthorised persons etc.
Variations in their duties depend on the direction of the
Professor/Doctor/Lecturers in the particular houses. For example,
Ms. Murphy, in addition to the duties described above also buys
supplies of coffee, tea, sandwiches etc. for staff and for
departmental seminars or workshops held on a regular basis in the
department; she lays the tables and prepares the tea and coffee
for these seminars or workshops and washes up afterwards; every
Wednesday she prepares lecture rooms and makes tea/coffee for 30
doctors and washes up afterwards.

Mr. Michael Coughlan works full time in the Post Room. His duties
involve sorting incoming and outgoing post, including parcels;
handing out post and parcels for internal deliveries and
delivering post to some areas; setting and operating the franking
machine and franking outgoing letters and parcels and tying
franked letters in postal district batches in accordance with An
Post regulations; doing minor maintenance to franking machine;
signing for letters for registered and express post and entering
details in Record Books, answering telephone and dealing with
minor queries. In the course of making his postal deliveries
keeping on the alert for vandals, etc.

Mr. Michael Walsh services an area consisting of the Students'
Union, History Department, Careers and Appointments Department,
Physical Education, Staff and Students Restaurants and toilets.
Every morning he checks these buildings internally and externally
to ensure that everything is in order, reports any problems, and
also stocks the toilets. He patrols and supervises the carpark
and generally keeps a look out for vandals etc.

Twice per day he collects all post from the Post Room for his area
and delivers it to individual offices, opening the offices if
locked. Twice per day he collects outgoing post from his area and
brings it to Post Room.


Every morning for 15 minutes he give out and takes in Initial
Towels. He prepares rooms for meetings etc. by arranging
furniture, supplying overhead projector and checking that it is
working correctly. He operates a radio telephone. Occasionally
he answers the telephone if the Office staff are not there and
deals with queries from visitors and students.

He helps at Conferrings, delivers occasional messages from
Departments to Library and on overtime performs some duties in the
General Attendant category that may arise.

14. In evaluating the work performed by both males I took into
account only the work actually performed by them on a regular
basis. In Mr. Coughlan's case this included some security related
work and some duties shared by the Departmental Operative viz.
sorting external and internal post, including the handling of
envelopes which contain money, and parcel post; taking in post
from and handing out post to Departmental Operatives and other
College Staff; signing for Registered and Express Post and
entering details in relevant Record Books; answering the
telephone and dealing with minor queries; heavy physical work.

I did not take into account (i) the work which he performs when
deputising for the Departmental Operative during absences as he is
remunerated in respect of these additional responsibilities; and
(ii) the duties listed for General Attendants on two shift work as
he has never been required to perform them.

In Mr. Walsh's case I took account of the duties which he performs
regularly and occasionally, as appropriate to the job which he
holds. I did not, therefore, include duties which he performed
over three years ago while holding different jobs or duties listed
for the other General Attendants rostered on two shift duty which
do not form part of his job but which he can do on overtime on a
voluntary basis, viz gate duty at Sporting Events, etc.

15. I firstly considered the work in terms of section 3(c) of the
Act. The College and the Union agree that the claimants involved
in the dispute here concerned all perform like work with each
other in terms of section 3 of the Act. Having examined the work
performed by each of the claimants I concur with the view of the
College and the Union that as between themselves the claimants
perform like work with each other in terms of section 3(c) of the
Act. Therefore, it is sufficient for the purpose of the
comparison to concentrate on the work performed by any one of the
claimants. I have chosen the work performed by Ms. Sheila Murphy
and compared it with the work performed by Mr. Michael Coughlan
and Mr. Michael Walsh in terms of skill, physical effort, mental
effort, responsibility and working conditions and my findings are
set out in the following paragraphs.


Skill

16. No particular education, training or experience is required
for Ms. Murphy's job. On-the-job training of a few days is
required to learn the operation of the vacuum cleaner, the lay out
of the houses, the methods of cleaning the different area viz
stairs, hallways, corridors etc., the schedule of classes held in
the different departments and the requirements of the Department
Heads and other staff members in each house serviced by her.
Although she requires a relatively low level of skill in her day
to day work she nevertheless requires (i) dexterity and some
knowledge concerning the operation of the vacuum cleaner; (ii)
initiative concerning the most effective method of cleaning,
drying towels during adverse weather conditions, the rotation of
cleaning work in different lecture rooms depending on classes etc;
and (iii) judgement concerning the reporting of maintenance faults
and of unfamiliar visitors to the Departments e.g. if they are
genuine or vandals etc.

17. Although no specific educational standards are specified for
the work of Michael Coughlan, the performance of his work does
require the ability to read, write and do basic arithmetic. He
also requires the knowledge to operate and maintain the franking
machines and must have a knowledge of the procedures followed in
the Post Room concerning Registered and Express Post and the
requirements of An Post concerning letters etc. To be proficient
at his job he must know the names and departments of approximately
800 persons, because when sorting letters, unless the envelope is
addressed to a department, which it seldom is, he must know where
the addressee is stationed, otherwise he would have to consult a
list and this would cause delays which could result in the post
not being completed on time. In addition, to achieve speed at
sorting, he requires on-the-job experience and dexterity. He is
also required to exercise judgement concerning unauthorised
persons or vandals whom he meets in the course of his postal
deliveries.

18. No specific educational standards or experience are specified
for Mr. Walsh's job. However, in order to perform his work fully
he requires the ability to read and write. He must be able to
read the names on the envelopes which have been handed to him by
the Post Room for delivery, but as these concern staff working in
his own particular area only he does not require to know who is
serving in other Departments like Mr. Coughlan. He is also
required to read schedules of lectures and details of the
requirements of the lecturers, viz if an overhead projector is
required, etc. When dealing with initial towels he has to record
to whom the towels have been issued and who has returned them. He
also requires some knowledge concerning the basic operation of
projectors, e.g. if they are working when switched on, if a bulb


is required or if it is faulty and should be sent to repairs. He
also requires the knowledge concerning the basic standard fire
fighting procedures, however, he has never actually used this
knowledge. He has to exercise judgement concerning reporting of
faults and dealing with any unauthorised persons, vandals etc. in
the area serviced by him.

19. Having considered the total demands under the heading of
skill required of Mr. Coughlan in the Post Room and for a short
period outside the Post Room I am satisfied that the level of
skill required by him is greater than that required of the
claimant. I am also satisfied that the level of skill required of
Mr. Walsh and the claimant are equal.

Physical Effort

20. In the course of her work Ms. Murphy has to lift and carry
the vacuum cleaner and other cleaning equipment up and down stairs
and from house to house. The actual cleaning work is also very
demanding physically and is done on a continuous basis. In
addition, she regularly moves furniture when cleaning and when
preparing rooms for seminars etc.

21. Mr. Coughlan accepts deliveries of internal post on a regular
basis and he also passes the post to the College collectors on a
regular basis, however, this post is quite light. Twice per day
he takes in sacks of post delivered by An Post. These sacks are
extremely heavy and sometimes he has to get assistance to move
them. The actual sorting of post also requires a little physical
effort. Like the claimant he is on his feet all day.

22. Mr. Walsh walks four or five times each day to and from the
Post Room carrying the post in a carrier bag - this is not very
heavy. When preparing a room for a meeting etc. he moves
furniture as required and also carried in the overhead projector
which he sets up. The taking in and handing out of initial towels
also require a little physical effort.

23. I consider that the effort required of Mr. Coughlan on an
occasional basis in lifting heavy sacks of post, in accepting
deliveries of post from Staff and in sorting the post is not as
great as the effort exerted by the claimant in the continuous use
of the vacuum cleaner, in carrying it up and down stairs and from
house to house, and in moving furniture. I consider, therefore,
that the demands on Mr. Coughlan under the heading of physical
effort are lower than those made on Ms. Murphy. I consider that
the more irregular physical demands required of Mr. Walsh in
moving furniture and projectors and carrying light weight carrier
bags of post to and from the Post Room are lower than those
required of Ms. Murphy.


Mental Effort

24. The work of sorting and stamping mail, accepting and
recording Registered and Express Post and maintaining the franking
machine as performed by Mr. Coughlan requires more mental effort
than the work of cleaning the houses, preparing and serving tea,
buying the necessary provisions, finding maintenance problems and
being alert for unauthorised persons, as performed by Ms. Murphy.

25. The work performed by Mr. Walsh of delivering post to the
correct office, checking the building in the area serviced by him
for maintenance problems etc. and being vigilant for vandals etc.
is in my view as demanding mentally as the work performed by the
claimant.

Responsibility

26. Ms. Murphy is responsible for (i) the keys to every room in
the houses which she services; (ii) the cleanliness of her area;
(iii) ensuring that clean towels and tea towels are available each
day; (iv) ensuring that the toilets in each house are stocked;
(v) keeping a supply of washing materials; (vi) collecting and
minding tea money and buying the required provisions; (vii)
laying the tables and preparing teas and serving it at meetings
and weekly seminars; (viii) reporting maintenance faults; (ix)
switching electrical appliances on and off; (x) dealing with
refuse bags; and (xi) being on the look out for unauthorised
persons.

27. Mr. Coughlan is responsible for correctly sorting incoming
and outgoing post; setting the franking machine correctly and
stamping letters as priced; following instructions for dealing
with registered post, express post and the standard post following
stamping of same; taking additional care with envelopes
containing money; performing minor repairs to franking machine
and ensuring it is working correctly; giving out correct
information when asked; and performing some security related work
when outside the Post Room.

28. Mr. Walsh is responsible for checking that everything is in
order in the area serviced by him and reporting any maintenance
faults; keeping keys to specific rooms in his area (he does not
have the keys to the lecture rooms and laboratories); patrolling
the carpark; being alert for vandals, undesirables and stray
animals and reporting any problems; correctly delivering the post
in his area; initial towels supply; stocking toilets; preparing
rooms for meetings and occasionally answering telephone and
directing visitors and students.


29. Having considered the responsibility aspects involved in the
work performed by the claimant and that performed by each of the
males I am satisfied that because Mr. Coughlan's work concerns the
efficient processing of all mail to and from the College, which
includes franking envelopes and processing envelopes containing
money and because errors could cause inconvenience, delays and
expense, his work requires a higher degree of responsibility than
that performed by Ms. Murphy. On the other hand, I am satisfied
that the demands under the heading of responsibility in the work
performed by Ms. Murphy and Mr. Walsh are equal.

Working Conditions

30. Ms. Murphy and Mr. Coughlan work mainly indoors in office
type conditions. Both are required to go out of doors and be
exposed to the elements occasionally viz Ms. Murphy to buy
provisions daily and to go from house to house and Mr. Coughlan to
deliver post twice per day. The possibility of accidents in
either job is negligible.

31. Mr. Walsh on the other hand spends a considerable amount of
his time out of doors, being exposed to the elements, viz he
checks around the outside of the buildings each morning, collects
and delivers post to the Post Room and patrols the car park. The
remainder of the time he spends in office type conditions similar
to those of Ms. Murphy and Mr. Coughlan. The possibility of
accidents in his job is also negligible.

32. I consider that the demands made on Ms. Murphy and Mr.
Coughlan under this heading are equal, while the demands made on
Mr. Walsh are slightly greater than on the claimant.

33. In summary, I have found that -

(i) the work performed by Ms. Murphy is equally demanding to
that performed by Mr. Walsh under the headings of skill,
mental effort and responsibility, is more demanding under
the heading of physical effort but is less demanding under
the heading of working conditions. I am satisfied that
taking into consideration all aspects of both jobs the
overall demands are equal,

(ii) that the work performed by Ms. Murphy is less demanding than
that performed by Mr. Coughlan in terms of skill, mental
effort and responsibility, is more demanding in terms of
physical effort and is equally demanding in terms of working
conditions. Having considered all aspects of the work
performed by Ms. Murphy and Mr. Coughlan I am satisfied that


the higher demands on Mr. Coughlan under the headings of
skill, mental effort and responsibility outweigh the higher
demands on Ms. Murphy in terms of physical effort. I am
satisfied, therefore, that the overall demands on Mr.
Coughlan are greater than those on Ms. Murphy.

34. In my opinion, section 3(c) of the Act does not require that
the demands of the work performed by the claimant should be
precisely equal in mathematical terms to the demands of the work
performed by the comparator. In fact, in the High Court Judgement
in the case of Murphy & others v. Bord Telecom Mr. Justice Keane
stated that "the words equal in value should not be used so as to
require a mathematics exactitude of equality, having regard to the
statutory context in which they are used." The question therefore
arises as to what level of difference should be regarded as being
of such insignificance that the work must be regarded as being
equal in value.

In the case here concerned, in deciding whether the difference in
demands between the work performed by Mr. Coughlan and Ms. Murphy
is significant or insignificant, it is a valid approach to
consider what level of difference in demands the College, in
practice, regards as being insignificant. For example, as Mr.
Coughlan is graded the same and paid the same as other General
Attendants including Mr. Michael Walsh, it is obvious that the
College does not regard the difference between the demands of Mr.
Coughlan's work and the demands of the work performed by Mr. Walsh
as being a significant difference. Consequently, it follows that
if the difference between the demands of Mr. Coughlan's work and
Ms. Murphy's work is to be regarded as a significant difference,
it must be a greater difference than the difference between the
demands of Mr. Coughlan's work and that of Mr. Walsh. Having
considered the demands of the work performed by Mr. Walsh, I am
satisfied, as already stated in paragraph 33 ante, that the work
performed by Ms. Murphy is as demanding as that performed by Mr.
Walsh. The difference between the demands of Mr. Coughlan's work
and those of Ms. Murphy's work is, therefore, a difference of no
significance and consequently I find that the work performed by
Ms. Murphy is equal in value to that performed by Mr. Coughlan in
terms of section 3(c) of the Act.

35. Accordingly, I consider that the work performed by Ms. Murphy
and by the other eleven claimants named in Appendix I is equal in
value to that performed by Mr. Walsh and Mr. Coughlan in terms of
section 3(c) of the Act.

36. I also considered the work in terms of section 3(b) of the
Act. I found that seven claimants, Ms. A. Allen, Ms. Maura
O'Connell, Ms. L. Dennehy, Ms. S. Murphy, Ms. A. Struthers, Ms. K.


Forde and until recently Ms. P. Cook, perform work which is like
work in terms of section 3(b) of the Act with Mr. Walsh. More
specifically, I consider that the work performed by each of these
claimants is similar in nature to that performed by Mr. Walsh and
that any differences are of small importance in relation to the
work as a whole. These claimants provide a service to a
particular area. Everyday, as they go through their respective
areas they took out for any maintenance faults which they report.
In the course of the cleaning they move furniture and carry their
equipment from place to place. They wash and dry towels daily and
stock toilets. They also provide a messenger related service viz.
collect tea money, go the shops and buy supplies and do other
messages as required. Also within their area they provide a
security related service viz. keeping a look out for unauthorised
persons etc. Likewise Mr. Walsh provides a service to a
particular area. Every day he goes through his area and reports
any faults. He prepares rooms for meetings, moves furniture and
provides over-head projectors as required. He gives out and takes
in initial towels and stocks toilets. He also provides a
messenger related service viz. he collects and delivers post,
parcels, etc. He provides a security related service by keeping a
look-out for vandals etc. and patrolling the car park. It is
clear from the above details that the nature of the jobs referred
to is similar. Furthermore, I am satisfied, as already stated,
that although there are some differences between the work
performed, they are of small importance in relation to the work as
a whole.

37. I have considered, in the context of section 2(3) of the Act,
U.C.C.'s argument that the General Attendants have a liability to
be transferred to two shift duty and would then have to perform
the work listed for General Attendants on that duty and that they
are remunerated on that basis. I am satisfied that Michael
Coughlan has never been assigned to two shift duty and, in any
event, if the comparators were so assigned they could not perform
that duty in addition to their present duties. As stated by the
Union, even if the comparators were moved to other work, the jobs
under comparison in the case here concerned would be assigned to
other males who would be in receipt of the same basic salary. In
addition, when on two shift working an allowance of £27.87 shift
premium is paid. Consequently, I am satisfied, in the
circumstances of this case, that the comparators' liability to be
transferred to two shift duty does not constitute a valid ground
other than sex to justify the comparators being paid a higher
basic rate than the claimants.

Recommendation
38. In view of my conclusions in the preceding paragraphs and
having regard to section 8(5) of the Act, I am satisfied that the
12 named claimants are entitled to the same hourly basic pay as
Michael Walsh and Michael Coughlan with effect from 20th February,
1984 or from the date of recruitment where later.


APPENDIX II


INTRODUCTION


Chairman, Members of the Court,


The case before you today arises from the Equality Officer's
Recommendation No. EP3/1988.


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 detail 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
conclusion under 3(B) and 3(C) are incorrect and are based on a
lack of appreciation of the security role of Mr. Walsh.


EP3/1988

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 ITGWU 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)

Over....


(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 that arise

Paragraph 15 (Page 16)

(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

Over....


(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.

Indeed the conclusion of the Equality Officer in comparing
Ms. Murphy's job against Mr. Walsh and Mr. Coughlan's jobs
separately showed that using the criteria of the Act, Mr.
Coughlan and Mr. Walsh's jobs were not equal. This is not
unusual with jobs within the same grade. The variations
found by the Equality Officer between Mr. Coughlan and Mr.
Walsh's job could arguably be more readily found between
the various jobs of the 12 claimants as they all work in
different areas. To conclude, therefore, that all the
claimants jobs were equal was an assumption and not an
established fact.


(ii) The outline job description submitted by College Management
merely covered the range of work and not the
actual jobs 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 in 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.


(iii) The Union claims that the work performed by the 12 named
House Attendants is like work in terms of sections 3(b)
and 3(c) of the Act with that performed by the 2 named
General Attendants. Under Sections 3(b) and 3(c) of the
Act like work is defined as

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"

/Over......


3. (iii) (Cont....)

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"

(iv) In paragraph 36 the Equality Officer concludes that seven
claimants, Ms. Allen, Ms. Maura O'Connell, Ms. L. Dennehy,
Ms. S. Murphy, Ms. A. Struthers, Ms. K. Forde and
Ms. P. Cooks perform work which is like work in terms of
Sections 3(b) of the Act, with Mr. Walsh.

This section of the Act refers to work of a similar
nature. It will be appreciated that the word similar
means "much the same". If this is the case it is being
suggested that the core of the House Attendants work which
is cleaning duties and the core of Mr. Walsh's work which
is security duties are much the same. We reject this
judgement as being not reasonable and, therefore, we
consider the conclusion to be illogical. In essence it is
being said here that:

cleaning duties and security duties are much the
same in nature. Therefore, the jobs are equal.


3. (iv) (Cont....)

We submit that these jobs are totally different in content
and, therefore, each job should be evaluated under Section
3(c) of the Act.

This conclusion also raises fundamental questions about a
lack of appreciation of what is involved in the Security
duties performed by the Comparator, Mr. Walsh.

(v) We accept the job description of the Equality Officer.
What we disagree with is the judgements made on these with
specific emphasis on the lack of appreciation of the
security work which is the core of Mr. Walsh's job.

(a) Patrolling:
The objectives in patrolling premises are:
(a) to prevent and detect fire.

(b) to prevent hazards and detect damage from
flooding or other causes or waste.

Over....


(c) to prevent accidents.

(d) to prevent break-ins.

(e) to detect and deal with vandals.

Patrolling involves both routine and snap checks. To do
this work, alertness, interest and thoroughness are
essential. This requires of the person an ability to make
judgements in that anything that appears other than normal
must be looked into.
/Over......

3. (v) (Cont....)

(b) Patrolling Car Park

Patrolling in this area involves the inspection of
up to 136 cars.

(c) Patrolling Outside Buildings

In relation to his patrols Mr. Walsh has to observe
and identify security risks such as:

- Burst pipes

- Rubbish dumps near or around buildings

- Cistern overflows

- Lighting

- Blocked drains

- Blocked guttering

- Access obstructed to main stop cocks

- Lighting of any outside areas where intruders


could hide or work undisturbed

- presence of unauthorised persons


/Over......




(d) Internal Security Patrols

This checking involves the following areas:


- Doors (state of repair - broken panels, badly
fitting etc.)


- Locks inadequate


- Windows left open (particularly in laboratories;
skylights and workshops).


- Broken window panes


- Faulty window catches



- Obstruction of doors/entrances which create a
security risk.


Special security risks such as:

- Safes

- Safety of equipment, machinery

It will be noted from the Appendix that the buildings for
which Mr. Walsh has a security responsibility have
91 doors; 117 windows; rooms with high security product
and very expensive equipment.


(e) Keys

Apart from being responsible for a Master Key for
all the buildings where he has a security
responsibility, Mr. Walsh also has to ensure in
patrolling that:

Over....


- keys are not left in locks

- keys are not left about loose



(f) Control

Mr. Walsh has a control function in relation to the
movement and parking of vehicles in the large car
park for which he is responsible.


Furthermore, through his role, as has been
emphasised by the Equality Officer, he has to
observe the movement of people in and out of the 10
buildings and deal with queries and give directions
as required.



(g) Student Control

Ensuring standards of conduct are maintained by
students, dealing with student protests or sit ins
as they arise.



(h) Radio Control

By virtue of his security duties Mr. Walsh has to
receive and transmit messages; information and
carry out instructions from the Central Base.


(i) Fire Inspections

It is recognised and accepted that this is an area
where the knowledge of an experienced security
person must be utilised on patrols. In Mr. Walsh's
case he checks for faulty electrics such as wiring;
broken switches.


Over....


He is required to:

Switch off and unplug any

- electric appliances not in use.

- look out for papers and files on top of
electrical storage heaters.

- switch off unnecessary lights.

- watch for any equipment left running with
the risk of overheating.

- ensure that extinguishers are not used as door
stops.

- ensure that all passageways are clear for fire
escape routes.



4. Comparison between Ms. Murphy's Job as House Attendant and
that of Mr. Walsh, General Attendant under Section 3(c) of
the Act.

(i) General Statement Page 13 on work of House Attendants
responsible for specified houses:
We wish to comment on the reference to reporting of
maintenance faults, switch on/off electrical equipment and
the staying alert for unauthorised persons. While
Ms. Murphy may by virtue of her presence be unable to
avoid maintenance problems or the presence of unauthorised
persons, she does not have a specific responsibility for
this work and her duty is no more and no less than any
other member of staff working in such houses. It is not
specified as a duty for House Attendants. On the other
hand it is a primary responsibility of the General
Attendants who have security responsibility for these
houses and who are scheduled on a shift work basis between
8 a.m. and 12 midnight (Monday to Friday) to patrol, check
and secure these premises.

Skill
(ii) In paragraph 18 on Page 17 we disagree with the statement
that "no educational standards or experience are specified
for a General Attendants job". In fact, this issue was
never raised with College Management.


Over....


If it was it would have avoided the assumptions made by
the Equality Officer and thus the incorrect conclusions.

Attached as Appendix 2 is a copy of an advertisement
dated 21 May, 1986

No General Attendant, including, specifically, Mr. Walsh
could perform the job without particular skills in
addition to those mentioned by the Equality Officer.


Knowledge skills related to:

- College Buildings (including the 10 for which he has
particular responsibility).

- People

- Equipment

- Procedures

- Radio Procedures

- Telephone system

- College facilities

- Stores

- Location of all Services

- Security role

- Fire procedures

- Gas fittings

- Water Hydrants

- Flooding

An examination of these points and the specific aspects of
security work as outlined in paragraphs 3(v) above clearly
illustrate that the level of skill required in Mr. Walsh's
job is far greater than that of Mr. Murphy's. Any job
evaluation exercise on the various sub-factors of the term
skill would rate Mr. Walsh's job as being higher.

Over....


We suggest, therefore, that the Equality Officer's finding
under the term skill is incorrect. We request the Court,
following its investigation to endorse this conclusion.

4. Physical Effort

(iii) In her conclusion under this heading the Equality Officer
appears to put all the emphasis in respect of Mr. Walsh's
job on "irregular physical demands". However, she has
excluded consideration of the main part of his work which
is security related and which involves physical demands on
a continuous basis throughout his working day. This can
be emphasised by the fact that (a) he has to patrol and
inspect up to 136 cars in the carpark which involves more
than mere walking; it involves bending to check unusual
items. The bicycle repair premises operated by the
students which is situated at the far end of the car park
from the entrance, comes within Mr. Walsh's patrol.
(b) climbing stairs in eight houses which are three
storey, and delivering post to up to 74 different rooms,
including parcels, in 10 buildings, and (d) covering in
the course of his work a wide geographical area.


It will be clear from this that the physical demands are
at least equal to Ms. Murphy having regard to:

(a) the physical stamina that his work demands.
Mr. Walsh's duties entail being on his feet all
day.

(b) the physical strength which furniture related
activity requires

and

(c) the dexterity which is required in relation to
dealing with the setting up of Overhead projectors;
Operating and responding to radio operations.


Over....


4. (iv) Mental Effort

Paragraph 25 deals with the mental demands of
Mr. Walsh's post. However, there is no indication in
this section of the factors under which the Equality
Officer compared Mr. Walsh's job to that of the
claimant and thus came to the conclusion that
"Mr. Walsh's job is in my view as demanding mentally as
the work performed by the claimant".

In the text of the Recommendation the Equality Officer
does mention some aspects of the demands in the
Security role such as

- Vigilance

- Judgement

- Initiative

- Concentration

_ Alertness

There are, of course, other mental demands that arise in
the performance of Mr. Walsh's job which are:

- Accuracy

- Communication

- Knowledge


While Ms. Murphy may, in common with other College
Staff in the houses that she works in, have to exercise
vigilance, this does not compare with the higher degree of
vigilance which is central to the performance by
Mr. Walsh of his security related role. In relation to
judgement, Mr. Walsh, in his contacts with the public,
staff, students, buildings and equipment has to
exercise judgements which do not arise to the same
degree in Ms. Murphy's case.

Over....


Initiative is central to Mr. Walsh's role also because of
the varied aspect of his work. Because of the less
varied aspect of Ms. Murphy's job it is obvious that
initiative of a lower degree is called for in the
performance of her work than that of Mr. Walsh's
security related role.


Concentration is involved in every job. However,
Ms. Murphy's job is largely confined to cleaning tasks
which are repetitive and, therefore, vary little from
one day to another. Because of Mr. Walsh's security
related work - his involvement with the public - his
involvement with staff, his involvement with students -
his involvement with buildings and equipment and being a
Master Key holder, Mr. Walsh clearly has to have a
much higher level of concentration in the performance of
his work.


Accuracy is another mental demand that arises in
Mr. Walsh's job. When directing members of the public -
students to college facilities - when reporting on
the radio to central base which contact causes
decisions to be taken it is clear that the effects of a
lack of accuracy in his work would be greater in
general than the mental demands of Ms. Murphy's work.
Communication with staff, students and the public -
communication by radio clearly involve Mr. Walsh in
greater mental demands than Ms. Murphy whose main
duties do not involve the same degree of communication.

Knowledge is required to perform any job efficiently.
While Ms. Murphy clearly has the knowledge to perform
her tasks there is a wider level of knowledge required by
Mr. Walsh in the performance of his work.
Therefore, this knowledge requirement imposes a higher
degree of mental effort on Mr. Walsh than the claimant.

Another aspect that clearly has not been taken into
account when reviewing the mental demands of the
claimant versus Mr. Walsh's job is that another General
Attendant performs the security role in the houses in
which Ms. Murphy works.

Over....


We submit, having regard to the above, that the mental
demands arising from Mr. Walsh's work are of a much
higher degree than those of Ms. Murphy's work.


Responsibility

The conclusion that Mr. Walsh's responsibility equals
that of Ms. Murphy is based, we suggest, on a lack of
appreciation of the extent of Mr. Walsh's security
responsibility over a wide geographical area covering a
large car park, 8 three storey houses and 2 other
buildings. One of these buildings houses, a doctor's
surgery, where drugs are kept and another has a human
performance laboratory with equipment valued at £50,000.
It is accepted that Ms. Murphy's duties in relation to
stocks of cleaning materials for toilets etc. involve
some degree of responsibility. Mr. Walsh's post,
nevertheless, involves a much wider degree of
responsibility in the number of area to be covered, his
wider responsibility, as already stated, for the areas
under his control and his responsibility for providing a
security presence at all times during his working day.
Ms. Murphy does not have to provide such a presence.
Mr. Walsh has additional responsibility for equipment
such as overhead projectors which must be provided,
checked and replaced if not working correctly.

Being a Master Key holder, being in radio contact with
the radio base and the security role clearly illustrate
that the responsibility is greater than that of
Ms. Murphy's role. In the conclusion by the Equality
Officer, we submit that there was not a sufficient
appreciation of the security duties which are central to
his work on any day. To illustrate this the security
related work as outlined through this submission shows
the correct emphasis on this work. Because of an
incorrect emphasis and lack of appreciation of what is
involved in security work, we submit the Equality
Officer came to the wrong conclusion in saying the jobs
had an equal degree of responsibility.

Having evaluated the position we ask the Court to
endorse our view that the level of responsibility is
greater in Mr. Walsh's job.

Over....


4. (vi) Working Conditions

In paragraph 31 the Equality Officer comments on the
working conditions of Mr. Walsh. It is difficult to
comprehend the conclusion that accidents in his job are
negligible when (a) he has to climb stairs every day in
houses with three storeys and (b) he has
responsibility for a car park which involves up to 136
cars that are not stationary at all times when he is in
that area checking.

Finally, in being a Master Key holder, he is more at
risk from attack than the claimant.

While we agree with the conclusion of the Equality
Officer under this heading we submit that there is an
under-emphasis of the degree to which on working
conditions his work ranks at a higher level.


5. 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 judgements made under 3 (C) to be incorrect
as they seem to demonstrate a lack of appreciation of
the Security Role.


(iii) In respect of 3 (B) we submit that where there is
misunderstanding it should not be concluded that all
jobs are equal before the commencement of an
investigation. This is evidenced by the fact that the
Equality Officer concluded that both Mr. Coughlan's and
Mr. Walsh's jobs were not equal within the meaning of
like work under Section 3 (B) and 3 (C) of the Act.

Furthermore, we submit that each claimant is a separate
case in law and not part of any other case.

Over....


(iv) Having regard to the foregoing we submit that on skill;
physical effort; mental effort; responsibility and
working conditions Ms. Murphy's job is not equal to that
of Mr. Walsh's under Section 3 (C) of the Act.


(v) By virtue of the fact that the Equality Officer found
all claimants jobs to be equal to that of Mr. Walsh
based on what we submit is a wrong conclusion, we ask the
Court to:


(a) Endorse the College position at point (iv) of this
summary,


and


(b) Accordingly to affirm that none of the claimants
jobs are equal to that of Mr. Walsh under Section 3
(B) or 3 (C) of the Act.


APPENDIX III

INTRODUCTION

On 20th February 1987 a dispute concerning 12 House Attendants
employed by U.C.C. 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 (EP 3/1988) 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 F.U.E., on behalf of the employer,
lodged notice of appeal against the recommendation. This notice
set out 10 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 Courts attention to
some difficulties which appear to present themselves in this
appeal.

The employers representatives - the F.U.E. - have only become
involved in this dispute since the issuing of the recommendation
by the Equality Officer. During the course of the investigation
U.C.C. 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 F.U.E. 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.

Over....


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 (DEP 5/1979)
where it was said:

"In making it 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 lodged by the FUE, on behalf of
U.C.C. states -

"that the Equality Officer erred in law and in fact in
treating the claimants as a group for the purposes of
investigation of the claims".

Over....


There is neither truth nor foundation in this statement. During
the investigation procedure the College put forward a single job
description to cover all claimants, and agreed, as did the Union,
that all claimants were performing like work with each other in
terms of Section 3 of the Act. Despite this the Equality Officer
outlines, in paragraph 15 of her recommendation, how she concurred
with this view only after examining the work performed by each of
the claimants.

It is also worth pointing out that the Equality Officer drew up
job descriptions for all positions being covered by the
investigation and submitted them to both parties for their
comments. This is outlined in paragraph 13 of the recommendation
where she states that:


"U.C.C. makes no significant comments on the descriptions".

The inclusion of this ground of appeal highlights the problems
which we have mentioned earlier. During the course of the
investigation there was agreement on this issue, and this
agreement is noted by the Equality Officer. Such agreement now
appears to be denied, not in the interests of fairness or
correctness, but in the interests of trying to produce a better
case.

It is almost as if the investigation process is seen as a
preliminary step only, before a "fuller" examination is undertaken
by the Labour Court.

It is our opinion that this was not the reasoning behind the
appeal process included in the legislation.

2. The second and third points of appeal state:

- "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 the named comparator, Michael Walsh".

and

- "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 the named comparator, Michael Coughlan".

Over....


The first point to be made is that no finding was made by
the Equality Officer against Michael Coughlan under Section
3(b) of the Act.

The fact that this becomes a point of appeal calls into
question whether the recommendation was given any serious
consideration at all - or whether the appeal system was
automatically put into place by the employer in the face of
a recommendation which was not in their favour.

We would ask the Court - in its determination - to refer
specifically to this inclusion of unwarranted grounds of
appeal.

In terms of the finding of like work under Section 3(b)
against Michael Walsh, it should be noted that this finding
was not make for all claimants - as can be seen in
paragraph 36 of the recommendation. This is further
evidence of the fact that each claimants case was
individually examined by the Equality officer. It should
also be noted that this distinction does not appear in the
grounds of appeal lodged by the employer and as such would
seem to add credence to the point we have already made.

The Court has, in several recent cases, thoroughly
considered the scope of Section 3(b) of the Act. In the
cases of Kavanagh .v. Toyota Motor Distributors (DEP
1/1986) and Dowdall O'Mahoney & Co. Ltd. (DEP 6/1987) the
Court has spelt out is interpretation of this subsection of
the legislation.

In Paragraph 36 of the recommendation, the Equality officer
states:

"I also considered the work in terms of section 3(b)
of the Act. i found that seven claimants, Ms. A.
Allen, Ms. Maura O'Connell, Ms. L. Dennehy, Ms. S.
Murphy, Ms. A. Struthers, Ms. K. Forde and until
recently Ms. P. Cook, perform work which is like work
in terms of section 3(b) of the act with Mr. Walsh.
More specifically I consider that the work performed
by each of these claimants is similar in nature to
that performed by Mr. Walsh and that any differences
are of small importance in relation to the work as a
whole. These claimants provide a service to a
particular area. Everyday, as they go through their

Over....


respective areas they look out for any maintenance
faults which they report. In the course of cleaning
they move furniture and carry their equipment from
place to place. They wash and dry towels daily and
stock toilets. They also provide a messenger related
service viz. collect tea money, go to the shops and
buy supplies and do other messages as required."

Also within their area they provide a security related
service viz. keeping a look out for unauthorised
persons etc. Likewise Mr. Walsh provides a service to
a particular area. Every day he goes through his area
and reports any faults. He prepares rooms for
meetings, moves furniture and provides over-head
projectors as required. He gives out and takes in
initial towels and stocks toilets. He also provides a
messenger related service viz. he collects and
delivers post, parcels, etc. he provides a security
related service, by keeping a look-out for vandals
etc. and patrolling the car park. It is clear from
the above details that the nature of the jobs referred
to is similar. Furthermore, I am satisfied, as
already stated, that although there are some
differences between the work performed, they are of
small importance in relation to the work as a whole."

It can be seen, therefore, that the Equality Officer has
investigated the fact and has made a finding in line with the
law in this instance.

3. The fourth and fifth grounds of appeal state:

- "that the Equality Officer erred in law and in act
in deciding that the claimants were performing
like work within the meaning of Section 3(c) of
the Act of 1974 with the named comparator, Michael
Walsh".

and

- "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 the named comparator, Michael
Coughlan."

Over....


Under the legislation the Equality officer is charged with
conducting an investigation into a dispute. This
investigation must relate to the facts of the jobs in
dispute, and must include a comparison of the demands the
jobs make in relation to such factors as Skill, Physical or
Mental Effort, Responsibility and Working Conditions.

In this dispute the Equality officer first established the
facts of the jobs. This involved spending a period of three
days examining the nature of the duties associated with each
post. Following this exercise she drew up comprehensive job
descriptions which were given to both parties for their
comment and which are included as an Appendix to the
recommendation.

A joint meeting was held to clarify any points on which there
was not total agreement.

From paragraph 16 to 32 of the recommendation we can see the
Equality Officer's analysis of the facts which she had
collected. She produces her comparisons under the headings
of Skill, Physical Effort, Mental Effort, Responsibility and
Working Conditions.

It is obvious that a very detailed, and very thorough
investigation took place - totally in accordance with the
legislation.

Following careful consideration of the relative demands
imposed by the jobs on the jobholders, the Equality officer
concludes, in paragraph 35, that the work performed by the
claimants is equal in value to that performed by the
comparators in terms of Section 3(c) of the Act.

The points of appeal presented totally ignore that there has
been full compliance with the legislation. Indeed they have
been presented to the Court by someone who has not, to our
knowledge, even seen the jobs let alone participated in this
investigation process. There is no information which can be
presented to the Court at this stage which would lend any
degree of credence to them.

4. The sixth and seventh grounds of appeal state:

Over....


- "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
the named comparator, Michael Walsh".

and

- "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 difference in pay between the claimants and
the named comparator, Michael Coughlan".

The Equality Officer details her consideration of this issue
in paragraph 37 of her recommendation. She states:

"I have considered, in the context of section 2(3) of
the Act, U.C.C.'s argument that the General Attendants
have a liability to be transferred to two shift duty
and would then have to perform the work listed for
General Attendants on that duty and that they are
remunerated on that basis. I am satisfied that
Michael Coughlan has never been assigned to two shift
duty and, in any event, if the comparators were so
assigned they could not perform that duty in addition
to their present duties."

As stated by the Union, even if the comparators were
moved to other work, the jobs under comparison in the
case here concerned would be assigned to other males
who would be in receipt of the same basic salary. In
addition, when on two shift working an allowance of
£27.87 shift premium is paid. Consequently, I am
satisfied, in the circumstances of this case, that the
comparators' liability to be transferred to two shift
duty does not constitute a valid ground other than sex
to justify the comparators being paid a higher basic
rate than the claimants.

Again, quite clearly we can see that the Equality
Officer has come to a conclusion which is in line with
decisions of the Court in previous, similar
situations.

Over....


5. The eighth point of appeal states:

- "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 the named
comparators, Michael Walsh and Michael Coughlan".

This we regard as a ground of appeal which is
superfluous to the Court to-day, and it is
questionable whether it should be used as a ground of
appeal at all. It is at best a summary of the points
already put forward and the final outcome of this
hearing will determine this issue.

Unless the F.U.E. intend to use this heading to expand
their case into new concepts of interpretation of the
legislation, it is not our intention to make further
comment on it.

6. As this point we have looked at the first eight
grounds of appeal submitted by the F.U.E. on behalf of
U.C.C. and we would like to stop for a moment and
consider what we have seen.

One, number eight, as we have just seen is either
totally irrelevant or central to the whole argument -
but it has not substance.

One, number three, appeals against a decision which
the Equality Officer did not make.

One, number two, again has not correctly stated the
decision which the Equality Officer made and is
patently without substance.

The remaining five contradict the position agreed by
the employer during the investigation process, and
attempt to create a position which would be more in
keeping with the tenor of the notice of appeal
document sent to the Court.

To summarise briefly, it would appear that the points of appeal:

Over....


- show lack of thought;
- contain several which are irrelevant to the dispute;

- suggest that there is an "appeal system" which is
automatically put into place regardless of the merits
of the case;

- suggest that there is either conflict or
misunderstanding between U.C.C. as the employer and
the F.U.E. as their representatives which should not
be before either the Court or the Union.

In fact this is all the more evident in the ninth point of appeal,
which states:

- "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".

Again an attack is being launched at one person who is not here
to-day and who cannot set the record straight - the Equality
Officer - an Officer of the Labour Court.

This ground of appeal creates the impression of an investigation
being conducted in a cavalier fashion and in a biased manner.
This is not the case as it occurs. The only possible question
which can be asked is what is "adequate".

It is standard practice that both sides see all submissions made
by the other party and have the opportunity to comment on it
within a reasonable time. This timescale is normally set by
agreement with the Equality Officer and it is only when agreement
cannot be reached that a reasonable deadline - usually of several
weeks - is imposed.

In this particular case no objections were raised about an
inadequate period of time being given to allow comments to be
made.

The Equality Officer has but one forum open to her to defend
herself from this type of criticism and that is by way of her
recommendation. It clearly shows that this spurious ground was
not an issue during the investigation.

Over....



We can only suggest that it shows a misunderstanding between
U.C.C. and their representatives and while we must ask the Court
to specifically comment on it in their determination, we must ask,
even at this late stage, that the employers remove this
unwarranted slur from their grounds of appeal.

CONCLUSION:

Chair, members of the Court, at the outset of this submission we
said that we did not believe that sufficient grounds could be put
before you to-day for an appeal to overturn the recommendation to
be successful.

We believe that an "appeal system" was triggered into action, and
that notice of appeal was lodged with the Court in July and
consequently ask the Court to find that this recommendation should
be implemented.

Thank you.


APPENDIX IV

Before formally presenting our submission 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 the 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.

Over....


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
they 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.

Over....



Indeed the Supreme Court Judgement on Martyn .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 prepare 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.

Over....



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