Labour Court Database __________________________________________________________________________________ File Number: AEE896 Case Number: DEE902 Section / Act: S21EE Parties: IRISH CROWN CORK COMPANY LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Equality Officer's Recommendation EE4/1989 concerning a claim by two female employees (Ms. Barry and Ms. Duffy) that the Company's action in removing them from quality check work and assigning them to Grade 3 work, without allowing them to retain their higher quality check rate of pay constituted discrimination against them contrary to the terms of the Employment Equality Act, 1977.
Recommendation:
- Union's Notice of Appeal (Appendix I).
- Union's submission for hearing on the 29th November, 1989
(Appendix II).
- Company's submission for hearing on the 29th November,
1989 (Appendix III).
DETERMINATION:
6. Having carefully considered the submissions made in this case,
the Court has come to the conclusion that the Equality Officer was
correct in the view that the issue in question was one of
remuneration and therefore not proper to be dealt with under the
terms of the 1977 Act.
Whilst not affecting the outcome of the appeal, the Court is of
the opinion that one important point of difference should be
commented upon, that is the issue as to whether within the wage
structure of the Company a Quality Check Operator was a separate
grade or whether they were in fact paid a differential related to
work. It seems to the Court that in normal industrial parlance
there is an important distinction to be drawn between a grade and
a differential. Grading carries implications that the higher
grade may take greater responsibility and has a capability to do a
wider range of work and hence a higher status within the Company
than occupants of lower grades. These characteristics therefore
imply that once granted, except for exceptional reasons, the grade
is permanent. A differential on the other hand relates to an
expertise or willingness to do a particular job and would
ordinarily terminate on transfer from that job or when the job in
question ceases to be done.
Given that these differences exist, the Court would not agree with
the Equality Officer in paragraph 23 of the Recommendation that
the question of whether the work was a specific grade or a
differential is not relevant insofar as a loss of grade implies a
loss of status which takes the issue beyond the single question of
remuneration.
In this case however, it is the view of the Court that the wording
of the original document establishing the wage structure within
the Company, dated the 12th April, 1979, is conclusive whatever
may have been the wording of later documents in which the issue of
the nature of the rate for Quality Check Operators was not
directly in question.
Since there was no formal change to the differential so
established it is the Court's view that the matter at issue is a
matter of remuneration solely and therefore the Court concurs with
the findings of the Equality Officer.
Division: Mr O'Connell Mr Collins Mr Walsh
Text of Document__________________________________________________________________
AEE896 DETERMINATION NO. DEE290
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21(1)
PARTIES: IRISH CROWN CORK COMPANY LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Equality Officer's Recommendation
EE4/1989 concerning a claim by two female employees (Ms. Barry and
Ms. Duffy) that the Company's action in removing them from quality
check work and assigning them to Grade 3 work, without allowing
them to retain their higher quality check rate of pay constituted
discrimination against them contrary to the terms of the
Employment Equality Act, 1977.
BACKGROUND:
2. Due to a fall in production in January, 1988, the claimants
were removed from quality check work and assigned to Grade 3
feeding/packing duties. As a result of this move the claimants
lost the quality check rate of pay and received a lower Grade 3
rate of pay. Both Ms. Barry and Ms. Duffy had been in receipt of
the quality check rate of pay on a continuous basis since 1984 and
1986 respectively. On 24th February, 1988, the Union, acting on
behalf of the claimants, issued the questionnaire form prescribed
under Section 28 of the Act to the Company stating that the
transfer of the claimants to Grade 3 work without retention of
their normal rate of pay constituted discrimination against them
contrary to the Employment Equality Act, 1977. On 16th March,
1988, the Company responded to the questionnaire form stating that
the Union was confusing two issues, a rate of pay and
differential. The Company stated that the claimants were not in
receipt of a differential in respect of their quality check work.
In line with established practice, the differential was removed
when the claimants ceased to do the work for which the
differential was appropriate. On 28th June, 1988, the Union,
acting on behalf of the claimants, referred the complaint to the
Labour Court under the Employment Equality Act, 1977. The Court
referred the case to an Equality Officer for investigation and
recommendation.
3. Following an investigation of the complaint, the Equality
Officer issued the following conclusions and recommendation on the
29th May, 1989:
18. The first point for consideration in is whether or not
this case comes within the scope of the Employment Equality
Act, 1977.
The Union submits that there are 4 separate grades of
production personnel in the Company each of which attract a
separate rate of pay. The claimants in this case were Grade 3
operatives who were assigned to quality check work and were
paid what is termed a "laboratory rate," this rate being
higher than the Grade 3 rate. Both claimants were in receipt
of this higher laboratory rate on a continuous basis for a
number of years.
19. Due to a fall in production the Company removed the
claimants from the quality check work and assigned them to
Grade 3 work without allowing them to retain their higher
laboratory rate. The Union contends that a male employee who
had to revert to a lower graded job would have retained his
higher rate of pay until such time as he would revert to his
original grade. The Union alleged that, in not following this
practice in relation to the claimants, the Company
discriminated against them contrary to the terms of the
Employment Equality Act, 1977.
20. The Company argues that the case presented by the Union
is not proper for consideration under the provisions of the
1977 Act as the alleged act of discrimination is the removal
of a rate of pay.
Without prejudice to this argument, the Company denies that
there are 4 grades of production personnel and states that the
present grading structure was negotiated in 1979 and has
remained unchanged since then. There are 3 grades of
production personnel and 3 areas of work which attract
differentials i.e. quality check work, chargehand work and
forklift work. The Company accepts that, in accordance with
normal industrial relations practice, a Grade 1 worker would
retain the Grade 1 rate if assigned to Grade 2 work. The
Company contends that it is also normal industrial relations
practice to remove a differential from a worker once they
cease to perform the work for which the differential applied.
The Company states that it was on this basis that the quality
check rate of pay was removed from the claimants and that the
same principle would apply to a male who ceased to do work for
which he received a differential.
21. The provisions of the Anti-Discrimination (Pay) Act, 1974
prohibit discrimination on the basis of sex in relation to one
condition of employment i.e. remuneration, while the
provisions of the Employment Equality Act, 1977 prohibit
discrimination on grounds of sex in relation to conditions of
employment "other than remuneration or any condition relating
to an occupational pension scheme." Section 3(1) and 3(4) of
the 1977 Act provide as follows:-
3(1)"A person who is an employer .... shall not
discriminated against an employee ... in relation to
.... conditions of employment (other than
remuneration ...)"
3(2)"Without prejudice to the generality of subsection
(1), a person shall be taken to discriminate .... if
he does not afford to a person ... the same terms of
employment (other than remuneration or any term
relating to an occupational pension scheme)..."
22. It is clear, therefore, that the Company is correct in
stating that the 1977 Act specifically excludes instances of
alleged discrimination in relation to remuneration.
Consequently, the crucial point for consideration in this case
is whether or not the issue in dispute concerns a condition of
employment other than remuneration which may properly be dealt
with under the provisions of the 1977 Act.
23. The 1974 Act defines remuneration as including "any
consideration, whether in cash or in kind, which an employee
receives, directly or indirectly in respect of his employment
from his employer." It is a matter of fact that the alleged
act of discrimination in this case is the Company's reduction
of the claimants' level of remuneration and the remedy
appropriate in the event of a finding of discrimination would
be restoration of the original level of remuneration and
reimbursement of the salary lost as a result of the removal of
the original level of remuneration. It seems clear to me,
therefore, that irrespective of whether one defines the
quality check work as a grade, as argued by the Union or as
work for which a differential applies, as argued by the
Company, the specific condition of employment at issue in this
dispute is remuneration.
24. As I am satisfied that the condition of employment in
dispute in this case is remuneration and as remuneration is
specifically excluded from the provisions of the 1977 Act, I
am satisfied that the Company has not contravened the 1977 Act
by reverting the claimants to the Grade 3 rate of pay.
25. In view of the conclusions reached in the above
Paragraphs 18 - 24 I find that the Company did not
discriminate against the claimants contrary to the terms of
the Employment Equality Act, 1977.
4. The Union rejected the recommendation and appealed it to the
Labour Court under Section 21(1) of the Employment Equality Act,
1977 (copy of the Union's Notice of Appeal is attached at Appendix
I). The Court heard the Appeal in Cork on the 29th November,
1989.
5. The following documents are attached as Appendices to this
determination:
- Union's Notice of Appeal (Appendix I).
- Union's submission for hearing on the 29th November, 1989
(Appendix II).
- Company's submission for hearing on the 29th November,
1989 (Appendix III).
DETERMINATION:
6. Having carefully considered the submissions made in this case,
the Court has come to the conclusion that the Equality Officer was
correct in the view that the issue in question was one of
remuneration and therefore not proper to be dealt with under the
terms of the 1977 Act.
Whilst not affecting the outcome of the appeal, the Court is of
the opinion that one important point of difference should be
commented upon, that is the issue as to whether within the wage
structure of the Company a Quality Check Operator was a separate
grade or whether they were in fact paid a differential related to
work. It seems to the Court that in normal industrial parlance
there is an important distinction to be drawn between a grade and
a differential. Grading carries implications that the higher
grade may take greater responsibility and has a capability to do a
wider range of work and hence a higher status within the Company
than occupants of lower grades. These characteristics therefore
imply that once granted, except for exceptional reasons, the grade
is permanent. A differential on the other hand relates to an
expertise or willingness to do a particular job and would
ordinarily terminate on transfer from that job or when the job in
question ceases to be done.
Given that these differences exist, the Court would not agree with
the Equality Officer in paragraph 23 of the Recommendation that
the question of whether the work was a specific grade or a
differential is not relevant insofar as a loss of grade implies a
loss of status which takes the issue beyond the single question of
remuneration.
In this case however, it is the view of the Court that the wording
of the original document establishing the wage structure within
the Company, dated the 12th April, 1979, is conclusive whatever
may have been the wording of later documents in which the issue of
the nature of the rate for Quality Check Operators was not
directly in question.
Since there was no formal change to the differential so
established it is the Court's view that the matter at issue is a
matter of remuneration solely and therefore the Court concurs with
the findings of the Equality Officer.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
12th February, 1990. Deputy Chairman
D.H./J.C.