Labour Court Database __________________________________________________________________________________ File Number: AEP896 Case Number: DEP893 Section / Act: S8(1)AD Parties: LISSADELL TOWELS LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Company against Equality Officer's Recommendation No. EP10/1986, concerning a claim by fifty six named female employees for equal basic remuneration with certain male employees, and for the payment of production bonus at the same minimum level of performance.
Recommendation:
Due to technical reasons this recommendation does not exist.
Division: Ms Owens Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEP896 DEP389
THE LABOUR COURT
ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. DEP389 OF 1989
PARTIES: LISSADELL TOWELS LIMITED
(Represented by the Federated Union of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Company against Equality Officer's
Recommendation No. EP10/1986, concerning a claim by fifty six
named female employees for equal basic remuneration with certain
male employees, and for the payment of production bonus at the
same minimum level of performance.
BACKGROUND:
2. The background to this case is set out in DEP 2 of 1987, dated
21st May, 1987, copy attached at Appendix 1.
3. DEP 2 of 1987 was the subject of a High Court Judicial Review
(Judicial Review No. 236/87), copy attached at Appendix 2.
4. Arising from the direction of the High Court that the Labour
Court should reconsider the matter and investigate the validity of
the applicants' dispute with the Company, a Court hearing
commenced on 8th March, 1989 to reconsider the Company's appeal.
The Union and the Company made written submissions to the Court;
copies are at Appendices 3 and 4 to this Determination. On 9th
March the Court visited the factory and viewed claimants and
comparators at work. The hearing resumed on 10th March, 1989 in
Dublin.
The Union on that date made a further written submission in
response to the Company's submission of 8th March. This is
attached as Appendix 5. The hearing adjourned and further
submissions were received from the parties on 23rd March, 1989.
These are attached as Appendices 6 and 7.
DETERMINATION:
Due to technical reasons this recommendation does not exist.
~
5. The matter in dispute between the parties involved in this
claim has already been the subject of a Labour Court determination
(DEP2/1987) which was subsequently the subject of a judicial
review application in the High Court before Mr Justice Egan.
In his judgement the learned Judge referred the matter back to the
Labour Court stating:
"that the respondents should not have allowed the appeal against
the favourable recommendation of the Equal Pay Officer when they
made no finding to the effect that there had not been
discrimination.
The determination of the Respondents dated the 21st May, 1987 will
accordingly be quashed and I direct that the matter be remitted to
the Respondents with a direction that they should reconsider the
matter and investigate the validity of the Applicants' dispute
with the Company in relation to alleged discrimination in pay".
Following the outcome of this Judicial Review the Court held a
further investigation into the dispute. The investigation
consisted of a hearing at which further submissions were heard and
an inspection by the Court of the work carried out by the
claimants and comparators. Following this inspection a further
hearing was held and further submissions received on the various
points of appeal.
We set out in the following paragraphs the findings of the Court
in relation to grounds of appeal which for convenience are grouped
under the different headings of the Act of 1974.
Section 3(c) of Act of 1974
Having considered the submissions made by the parties, the job
descriptions supplied and the further evidence submitted by the
parties in relation to the jobs the Court visited the factory and
inspected the jobs of the comparators and the claimants. Taking
all the evidence into account and taking account of the demands
made, under the headings of skill, mental effort, responsibility,
physical effort and working conditions the Court has come to the
following conclusions:
1. That the work performed by the claimants is not equal
in value inter se;
2. That the work performed by the comparators is not equal
in value inter se;
3. That the work performed by any of the claimants is not
equal in value, in terms of the demands made, to the
work performed by the comparators in Cloth Inspection
and Cone Winding.
4. That the work performed by the claimants in Shrink
wrapping, Hemming (Side Hemming and end Hemming -
Auto), Cutting with an electric knife, and Sheets is
not equal in value, in terms of the demands made, to
the work performed by the comparator in Packing.
5. That the work performed by the claimants in Hemming
(Manual), Robes, Cutting in line with scissors,
Examining and Embroidery is equal in value, in terms of
the demands made, to the work performed by the
comparator in Packing.
6. The Court accordingly determines that the claimants
while performing the work outlined in Para 5 above, are
employed on like work with the Packer.
Sect 2(3) Grounds other than sex
The Company correctly argues that under Sect 2(3) of the Act an
employer may raise the defence that the differences in the pay of
employees of different sexes arise for reasons other than sex e.g.
economic circumstances. They incorrectly state that the Equality
Officer did not refer to this defence in his Recommendation.
(Para 19 of the Report. No. EP10/1986 refers).
The Court has examined the evidence presented to it in relation to
Sect 2(3) and also has taken cognisance of the judgement of the
European Court of Justice in the Bilka Kaufhaus case.
With regard to the Company's claim that the comparators had a
contractual liability to work shift the Court finds that no
evidence was produced to show that a liability to work shift was
the reason for the difference in pay between the claimants and the
comparators. No other evidence was produced to support the
Company's arguments under Sect 2(3). The Court accordingly
rejects the appeal under this Sect of the Act.
Sect. 3c - Bonus
The claimants have also submitted a claim to be paid production
bonus at the same minimum level of performances as the named
comparators. The terms of the bonus scheme provide that bonus
earnings commence for the women at 80% performance and for men at
70% performance. The terms also provide that the women earn their
maximum bonus at 117% performance whereas the men earn maximum
bonus at 120% performance. The claim before the Court is that the
term in the bonus scheme which provides for different performance
levels for commencement of bonus earnings for men and women should
be altered to provide for the same performance levels for
commencement of bonus earnings. This therefore, is the claim the
Court must consider in relation to the bonus scheme.
The parties referred the Court to the decision of the English
Court of Appeal and the House of Lords in the case of Hayward v
Cammel Laird Shipbuilders Ltd. The Court has also taken into
consideration of the terms of Article 119 of the Treaty of Rome
and the Council Directive No. 117 of 10th Feb 1975, Article 1 of
which states:-
"The principle of equal pay for men and women outlined
in Article 119 of the Treaty, hereinafter called
"principle of equal pay", means, for the same work or
for work to which equal value is attributed, the
elimination of all discrimination on grounds of sex
with regard to all aspects and conditions of
remuneration".
The Court is of the view that in keeping with this Directive it is
correct in dealing with claims for equal remuneration to consider
each aspect of the remuneration separately and that each element
which goes to make up that remuneration should be equal unless
there are grounds other than sex as set at in Sect 2(3) of the
Act.
Having carried out an investigation as outlined above in relation
to basic pay the Court determines that the claimants who are
entitled to equal basic pay are also entitled to be paid
production bonus at the same minimum level of performance as the
Packer.
Bonus - Appeal under Sect 2(3).
The Company also submitted that the different bonus scheme arose
for industrial relations reasons as the two schemes had been
negotiated and agreed by the parties to this dispute, and that
this constituted a sound defence under Sect 2(3).
The Court does not accept that an agreement entered into and
accepted by the parties and subsequently found not to comply with
the terms of the 1974 Act constitutes valid "grounds other than
sex" within the meaning of Sect 2(3). The Court accordingly
rejects the appeal.
The Court is aware that there may be residual problems for the
parties in implementing this part of the determination but
envisages that the parties can negotiate a resolution to these
problems consistent with the provisions of the 1974 Act.
Grounds of Appeal Sect 8(5)
The Court cannot accept the Company's submission that the Act does
not give any power to the Labour Court "to make an award in
respect of arrears of remuneration".
Where the Labour Court determines that an equal pay situation
exists, it establishes for the claimant an entitlement to equal
pay for as long as that situation has existed, subject only to the
limitations set out in section 8(5) of the Act. Accordingly, what
is described by the Company as "an award in respect of arrears of
remuneration" is in fact a limitation of an entitlement of the
claimant. The Court therefore rejects the appeal under Sect 8(5).
Other Grounds of Appeal
The Court has dealt above with the major grounds of appeal. In
view of the findings under 3(c), other matters raised in relation
to the introduction of employees not named as comparators, and
a group claim, do not need to be determined.
With regard to the points of appeal dealing with the 'facts' of
the case, the Court is satisfied that following its own
investigation and examination at the workplace and also the
detailed information and evidence presented by the parties that it
is in possession of all the facts necessary to determine the case
before it. In arriving at its decision the Court has evaluated
and taken into account all these facts.
In view of its findings as set out above the Court determines
that each of the claimants is entitled to be paid the same
rate of basic pay as that paid to the comparator engaged in
Packing for any period of time spent on Robes, Cutting in
line, Hemming-manual, Embroidery and Examining with effect
from 2nd July, 1982 the date three years prior to the
reference of the dispute to an Equality Officer. The Court
also determines that these claimants are entitled to be paid
bonus on reaching 70% of standard with effect from the same
date and for the same periods.
Signed on behalf of the Labour Court
Evelyn Owens
3rd July, 1989 -------------
A.K./U.S. Deputy Chairman