Labour Court Database __________________________________________________________________________________ File Number: AEP897 Case Number: DEP902 Section / Act: S8(1)AD Parties: CMP DAIRIES LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Equality Officer's Recommendation No. EP2/1989 concerning a claim by eight named female employees for the same rate of remuneration as that paid to thirty three named male comparators.
Recommendation:
5. 1. The Company's grounds of appeal as set out in their letter
of 18th May, 1989 are referred to above.
The Court will deal with each item.
5. 2. With regard to ground of appeal No 3. the Court notes that
the Company did not advance any basis for this appeal and
indicated at the hearing that they wished to withdraw this
point. (See however Paragraph 5.6 below).
No further points were raised under appeal ground No 6.
Essentially therefore the Court has to make a determination on
grounds of appeal nos. 1,2,4 and 5.
5. 3. In the first instance the Court refers to ground of appeal
No. 5 which referred to the Equality Officer's investigation.
The Court notes that in paragraph 14 of his recommendation the
Equality Officer acknowledged that there was disagreement as
to the actual duties performed on a regular basis by
individual claimants and comparators. He goes on to state
that
" In order to resolve this issue I gave both sides an
opportunity to make supplementary submissions and I
spoke to each claimant and comparator individually in
the presence of the Company and the Union."
It is clear to the Court on the basis of the facts set out in
the recommendation and on the basis of the submissions to the
Court, that the Equality Officer drew up his own job
descriptions on the basis of the work as viewed by him during
his job inspection and taking into account the submissions
made. He confirmed his description of the work with each
individual employee in the presence of the Company and Union.
There were no recorded objections by the Company, either at
the interviews or at the subsequent meeting, to the job
descriptions or the procedures followed. (Paragraphs 6 and 14
of Equality Officer's Recommendation).
In all of these circumstances the Court cannot accept the
Company's claim that the Equality Officer failed to use fair
procedures.
5. 4. Grounds of appeal Nos. 1, 2 and 4 relate to specific
sections of the Anti-Discrimination (Pay) Act, 1974 and
accordingly will be examined with reference to the terms of
those sections.
5. 5. Ground of Appeal No. 1 - Section 3(b) of Act of 1974.
(A) The Court in the first instance wishes to refer to the
Judgement of Ms. Justice Carroll in the case of An Comhairle
Oiliuina Talmhaiochta v 105 Female Agricultural Officers in
which she stated that in order to make a finding of like work
under Section 3(b) the Labour Court had to find certain basic
facts - viz.
" It must find that as between the comparators and each
of the claimants.
(1) The work is of a similar nature and
(2) (A) either there are no differences in the work
performed or the conditions under which it is
performed by each, or
(B) any differences are either infrequent or of
small importance in relation to the work as a
whole."
(B) The Company claimed that the Equality Officer erred in fact
and in law in his findings under 3(b). Having considered the
written and oral submissions together with the detailed
appendices attached to the Equality Officer's report the
Court decided to carry out its own inspection of the work
performed by the 8 named claimants and the 4 comparators
examined by the Equality Officer. Subsequent to the Court's
investigation the Company submitted further job descriptions
to which the Union responded.
(C) The Court's findings are based on the facts as witnessed
during the investigation in the course of which a number of
questions were answered by the Operations Manager and Union
representatives who accompanied the Court members at all
times during the work inspection. The Court was further
escorted through all areas of the plant so as to be able to
assess whether or not different working conditions existed.
(D) In paragraphs 18 to 20 of his report the Equality Officer
details the work performed by the four claimants in the
Yogurt Division and compares it with that performed by two
Division: Ms Owens Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
AEP897 DETERMINATION NO. DEP290
ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. OF 1989
PARTIES: CMP DAIRIES LIMITED
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Equality Officer's
Recommendation No. EP2/1989 concerning a claim by eight named
female employees for the same rate of remuneration as that paid to
thirty three named male comparators.
BACKGROUND:
2. The background to this case is set out in Equality Officer's
Recommendation No. EP2/1989 which is attached as Appendix I.
3. On 16th May, 1989 the Services Industrial Professional
Technical Union wrote to the Court requesting the implementation
of the Equality Officer's Recommendation. On 18th May, 1989 the
Company wrote to the Court appealing the recommendation. The
Company's grounds of appeal were as follows:-
1. That the Equality Officer erred in law and in fact in
deciding that the claimants were performing like work within
the meaning of Section 3(B) of the Act of 1974 with the named
comparators John E. O'Connell, Jim Slattery, Martin Hanley
and Denis Collins.
2. That the Equality Officer erred in law and in fact in
deciding that claimants were performing like work within the
meaning of Section 3(C) of the Act of 1974 with the named
comparators John E. O'Connell, Jim Slattery, Martin Hanley
and Denis Collins.
3. That the Equality Officer erred in law and 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 comparators.
4. That the Equality Officer erred in law and in deciding that
the claimants had an entitlement to equal pay under the Act
of 1974 with the named comparators.
5. That the Equality Officer failed to use fair procedures in
that he prepared a list of duties purported to be those
performed by the comparators which were never shown to the
Company. The Equality Officer based his conclusions on
incorrect information as such description of the duties were
incomplete and incorrect.
6. Such other grounds as may arise during the course of the
proceedings.
4. The Court heard the appeal on 27th September, 1989. The
written submissions made to the Court at this hearing are attached
as Appendices II and III. On 1st November, 1989 the Court visited
the Company's premises to carry out a work inspection.
Subsequently, the Company submitted a further written submission
to the Court (received on 6th November, 1989) and the Union
submitted a number of further points (received on 17th November,
1989), these are attached as Appendices IV and V.
DETERMINATION:
5. 1. The Company's grounds of appeal as set out in their letter
of 18th May, 1989 are referred to above.
The Court will deal with each item.
5. 2. With regard to ground of appeal No 3. the Court notes that
the Company did not advance any basis for this appeal and
indicated at the hearing that they wished to withdraw this
point. (See however Paragraph 5.6 below).
No further points were raised under appeal ground No 6.
Essentially therefore the Court has to make a determination on
grounds of appeal nos. 1,2,4 and 5.
5. 3. In the first instance the Court refers to ground of appeal
No. 5 which referred to the Equality Officer's investigation.
The Court notes that in paragraph 14 of his recommendation the
Equality Officer acknowledged that there was disagreement as
to the actual duties performed on a regular basis by
individual claimants and comparators. He goes on to state
that
" In order to resolve this issue I gave both sides an
opportunity to make supplementary submissions and I
spoke to each claimant and comparator individually in
the presence of the Company and the Union."
It is clear to the Court on the basis of the facts set out in
the recommendation and on the basis of the submissions to the
Court, that the Equality Officer drew up his own job
descriptions on the basis of the work as viewed by him during
his job inspection and taking into account the submissions
made. He confirmed his description of the work with each
individual employee in the presence of the Company and Union.
There were no recorded objections by the Company, either at
the interviews or at the subsequent meeting, to the job
descriptions or the procedures followed. (Paragraphs 6 and 14
of Equality Officer's Recommendation).
In all of these circumstances the Court cannot accept the
Company's claim that the Equality Officer failed to use fair
procedures.
5. 4. Grounds of appeal Nos. 1, 2 and 4 relate to specific
sections of the Anti-Discrimination (Pay) Act, 1974 and
accordingly will be examined with reference to the terms of
those sections.
5. 5. Ground of Appeal No. 1 - Section 3(b) of Act of 1974.
(A) The Court in the first instance wishes to refer to the
Judgement of Ms. Justice Carroll in the case of An Comhairle
Oiliuina Talmhaiochta v 105 Female Agricultural Officers in
which she stated that in order to make a finding of like work
under Section 3(b) the Labour Court had to find certain basic
facts - viz.
" It must find that as between the comparators and each
of the claimants.
(1) The work is of a similar nature and
(2) (A) either there are no differences in the work
performed or the conditions under which it is
performed by each, or
(B) any differences are either infrequent or of
small importance in relation to the work as a
whole."
(B) The Company claimed that the Equality Officer erred in fact
and in law in his findings under 3(b). Having considered the
written and oral submissions together with the detailed
appendices attached to the Equality Officer's report the
Court decided to carry out its own inspection of the work
performed by the 8 named claimants and the 4 comparators
examined by the Equality Officer. Subsequent to the Court's
investigation the Company submitted further job descriptions
to which the Union responded.
(C) The Court's findings are based on the facts as witnessed
during the investigation in the course of which a number of
questions were answered by the Operations Manager and Union
representatives who accompanied the Court members at all
times during the work inspection. The Court was further
escorted through all areas of the plant so as to be able to
assess whether or not different working conditions existed.
(D) In paragraphs 18 to 20 of his report the Equality Officer
details the work performed by the four claimants in the
Yogurt Division and compares it with that performed by two
comparators - Mr. J. O'Connell and Mr. J. Slattery. There is
no argument as to the accuracy of his description of the
claimants' work. In relation to Mr. Slattery, the Court
during its visit investigated the duties performed by him.
This included an observation of his activities while involved
in cheese processing/packing. From these observations the
Court concluded that the demands on him while performing this
work are higher than those made on the claimants. The
question then arose for the Court's consideration - did these
higher demands constitute a difference in a comparison on an
overall basis with the work done by the claimants and if so
was it to such an extent as to warrant a finding that the
claimants were not performing like work. After careful
assessment the Court came to the conclusion that to so find
was correct in this instance.
(E) The Court then examined the position of Mr. J.E. O'Connell.
There was nothing discovered by the Court during the
inspection which would convince the Court that the Equality
Officer had erred in his description and findings in relation
to Mr. O'Connell. It was also confirmed that for at least
one day per week he was engaged stacking pallets. Apart from
this element of his activities it is the view of the Court
that the work of Mr. O'Connell is similar in nature to that
of the claimants. Insofar as the stacking is concerned the
Court considered two aspects, did it constitute a difference,
and was it or was it not infrequent. The Court's conclusions
were that a difference did exist and that the difference
occurred more than infrequently. This concurred with the
findings of the Equality Officer who correctly, in the
Court's view and in accordance with the test set down by Ms.
Justice Carroll, examined whether that difference was of
small importance in relation to the work as a whole. Section
3(b) of the Act does not lay down the basis for assessing
what is or is not of small importance and, therefore, this
must be a matter of judgement. It is the view of the Court
that the difference in work performed by Mr. O'Connell
(stacking pallets) is of small importance in relation to the
work as a whole. In this regard the Court refers to its
decision in Dowdall 0'Mahony & Co Ltd and Nine Female
Employees (DEP 6/1987) which is quoted in paragraph 21 of the
Equality Officer's report.
(F) The Court considered a submission by the Company to the
effect that the different rates of pay arose from a Job
Evaluation exercise carried out in 1978. In this regard the
Court was mindful of the fact that both parties agreed that
the nature of the work had changed radically since 1978.
Since that time, notwithstanding the acknowledged changes, no
other criteria for fixing wages had been introduced. In such
circumstances the Court has no alternative but to perceive,
interpret and judge the work as currently carried out and
arrive at a conclusion thereon. This the Court did and
concluded that the four claimants and Mr. J. O'Connell,
perform work which is similar in nature and that the
differences which exist are of small importance in relation
to the work overall and are such as would not normally form
the basis for a different rate of pay if the sex of the
worker was not a factor.
(G) The Court accordingly determines that the four claimants,
Noreen Dalton, Kay Murray, Catherine Sugrue and Margaret
O'Leary are each employed on like work with John E. O'Connell
within the terms of Section 3(b) of the Act.
5. 6. The Court then proceeded to examine the arguments put
forward by the Company to the effect that if the Court were to
find that Mr. O'Connell performed like work with the claimants
the case should not be determined on that basis as Mr.
O'Connell should have been "red circled." The Court considers
this argument should more correctly be dealt with under
Section 2(3) of the Act which states:-
" Nothing in this Act shall prevent an employer from
paying to his employees who are employed on like work
in the same place different rates of remuneration on
grounds other than sex."
The Court notes that the Company did not raise the question of
"red circling" Mr. O'Connell during the course of the Equality
Officer's investigation, nor had it been raised previously
with the Union. The Company submitted in support of their
case that Mr. O'Connell was not capable of performing the full
range of duties required from other males. The Union for its
part strenuously resisted this contention and were adamant
that this employee performed adequately all the tasks required
of him. As stated above there was nothing discovered by the
Court during the inspection which would convince the Court
that the Equality Officer erred in his description and
findings in relation to Mr. O'Connell. The Court could find
no evidence to substantiate the Company's arguments that Mr.
O'Connell should be red-circled and that the difference
between his pay and that of the claimants arose from reasons
other than sex. The Court accordingly rejects the Company's
appeal on this point.
5. 7. The Court next examined the work performed by the
claimants and the comparators in the Milk Division. As with
the Yogurt Division the Court acquainted itself with the
various duties and operations carried out within the relevant
areas. This included an inspection of the general
bottled/cartoned milk process and an inspection of the glass
bottle washing machine and de-crater/crater washer machines in
operation. Having done so, and having confirmed the detailed
duties of the claimants and the comparators, the Court then
applied the same test as outlined in relation to the Yogurt
Division. In applying that test, and considering it vis-a-vis
the Company's submission in support of its appeal, the Court
reached the conclusion that the Equality Officer did not err
in his findings and is satisfied that the work performed by
each of the four claimants is similar in nature to that
performed by the two named comparators and that any
differences are of small importance in relation to the work as
a whole.
The Court therefore determines that the claimants, Breda
O'Brien, Phil Walsh, Mary Keohane and Mary O'Leary are each
employed on like work with both Martin Hanley and Denis
Collins within the terms of Section 3(b) of the Act.
Ground of Appeal No. 2 - Section 3(c) of the Act of 1974.
5. 8. The Equality Officer having reached his conclusions on the
claim under the terms of Section 3(b) of the Act then
proceeded to consider the claim under the terms of Section
3(c). In view of his findings under 3(b) which effectively
dealt with the matter in dispute it was not necessary to make
a further finding under 3(c). Similarly in view of the
findings in Paragraphs 5.5 and 5.7 above the Court is not
bound to consider the matter further. However, as the
Equality Officer did make an assessment under Section 3(c) and
the Company appealed that assessment, the Court decided to
extend its investigation and to consider the work performed by
the claimants and comparators under the factors set out in the
section. The Court also noted the interpretation of the words
"equal in value" given in the High Court Judgement of Mr.
Justice Keane in the case of Murphy and Others v Bord Telecom.
Having considered the submissions made by the parties, the job
descriptions supplied and the information gathered during the
course of the visit to the factory, the Court has come to the
conclusion that whilst there are differences in the demands
made in respect of physical effort on the comparators
O'Connell, Hanley and Collins this difference is of minor
importance in relation to the work as a whole. A point was
made by the Company in regard to what they claimed to be the
greater degree of flexibility required from the comparators.
The Court was not satisfied that the arguments made by the
Company and the evidence deduced during the inspection formed
grounds to reject or alter the Equality Officer's findings
that the work of the comparators and the claimants are equal
in value.
Applying Mr. Justice Keane's dictum when seeking to interpret
"equal in value":
" No doubt, the words should not be used so as to require
a mathematical exactitude of equality, having regard to
the statutory context in which they are used."
the Court has come to the conclusion that the work performed
by the eight claimants is equal in value to that performed by
the three comparators named above - i.e. Martin Hanley, Denis
Collins and John E. O'Connell.
The Court accordingly rejects the appeal under Section 3(c) of
the Act.
Ground of Appeal No. 4
5. 9. In view of its findings at paragraphs 5.5(g), 5.7 and 5.8
in which the Court found that each of the claimants is
employed on like work with three named comparators within the
terms of Sections 3(b) and 3(c) of the Act, the Court
determines that the claimants have an entitlement to the same
rate of remuneration as the named comparators, under Section 2
and that the appeal on Ground No. 4 must fail.
5. 10. Having considered all the grounds of appeal and in view
of the conclusion reached thereon the Court determines that
the Equality Officer's recommendation as set out in Paragraph
37 of Report No. EP2/1989 be upheld in so far as it recommends
that the eight claimants are entitled to equal pay with
Messrs. O'Connell, Hanley & Collins.
~
Signed on behalf of the Labour Court
Evelyn Owens
______________________
26th April, 1990 Deputy Chairman.
U.M./M.F.
APPENDICES
CONTENTS
1. Appendix I - Equality Officer's Recommendation No.
EP2/1989.
2. Appendix II - Union's submission - Labour Court hearing
of 27th September, 1989.
3. Appendix III - Company's first submission - Labour Court
hearing of 27th September, 1989.
4. Appendix IV - Company's second submission (received
6th November, 1989).
5. Appendix V - Union's written points (received 17th
November, 1989).