Labour Court Database __________________________________________________________________________________ File Number: AEP891 Case Number: DEP901 Section / Act: S8(1)AD Parties: SCHIESSER INTERNATIONAL (IRELAND) LIMITED - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Company against Equality Officer's Recommendation Nos EP11/1988, EP12/1988, EP13/1988, EP14/1988 and appeal by the Union against Equality Officer's Recommendations Nos. EP11/1988, EP13/1988, EP14/1988 and EP15/1988.
Recommendation:
This is available in the Full Document only.
Division: Mr O'Connell Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEP891 DEP190
ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. DEP190
SECTION 18(1)(A)
PARTIES: SCHIESSER INTERNATIONAL (IRELAND) LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Company against Equality Officer's
Recommendation Nos EP11/1988, EP12/1988, EP13/1988, EP14/1988 and
appeal by the Union against Equality Officer's Recommendations
Nos. EP11/1988, EP13/1988, EP14/1988 and EP15/1988.
BACKGROUND:
2. The Company is a subsidiary of a German Company and
manufactures men's and children's underwear and beachwear. It was
established in Clonmel in 1965/1966 and a second plant was
established in Carrick-on-Suir in 1971. The Carrick-on-Suir plant
is administered from Clonmel. Both factories have about an equal
number of production workers.
3. On the 26th June, 1987 the Union requested an investigation by
an Equality Officer into a dispute over an equal pay claim on the
Clonmel and Carrick-on-Suir plants. The Irish Congress of Trade
Unions (I.C.T.U.) subsequently forwarded to the Equality Officer a
list of 203 names of female employees who were claiming equal pay
with six named male comparators employed in Clonmel on the basis
that the claimants were performing like work with that performed
by each individual male within the terms of Section 3(c) of the
Act and in addition those claimants listed as packers were
performing like work within Section 3(b) of the Act with that
performed by Richard Blanche, one of the named comparators.
4. During the course of the Equality Officers investigation the
Union asked that additional claimants be included in the claim.
The Union identified the additional claimants by letter dated 19th
February, 1988 (a copy of the letter was sent to the Company)
which brought the total number of claimants to 217.
5. Because of the large number of claimants involved the Equality
Officer decided to issue a series of recommendations dealing with
the various categories of workers numbered.
EP11/88 to EP15/88 inclusive;
EP11/88 - Machinist;
EP12/88 - Forepersons, Examiners (including one exclusively
engaged in making bundles), Sorter and Final
Checker;
EP12/88 - Packers (including one engaged exclusively on
Filling Bundles and one engaged exclusively on
Banding);
EP14/88 - Marking out and cleaners;
EP15/88 - Printing Machine Operators.
11. The Union, by letter dated 4th January, 1989 lodged an appeal
against Equality Officer's Recommendation Nos. EP11/1988 to
EP14/1988 on the following grounds:-
"1. The Equality Officer erred in finding that the claimants
were not doing like work with that done by Richard
Blanche.
2. The Equality Officer erred an interpreting Section 3(c)
of the Act too narrowly.
3. The Equality Officer erred by not taking into account the
magnitude of demands made on the claimants who performed
sewing, printing, packing and cleaning duties when
determining the relevative value of work with that of Mr.
Richard Blanche.
4. The Equality Officer erred in her interpretation of
Section 3(b) of the act when comparing the work of
claimants involved in packing duties with that of Richard
Blanche.
5. The Equality Officer did not take into account the full
liability of the claimants to be flexible when evaluating
their work.
6. Further on other grounds as may be argued and included in
submissions to the Court."
The Union also sought implementation of Equality Officers
Recommendation Nos EP12/1988 and EP14/1988 as it applies to
certain named employees.
12. The Company also by letter dated 4th January, 1989 lodged an
appeal against Equality Officers Recommendation Nos EP11/1988,
EP12/1988 and EP14/1988 on the following grounds:-
"1. The Equality Officer was wrong in law and in fact and
misdirected herself and acted in excess of jurisdiction
in holding that a dispute existed between the Appellant
and the Respondents for the purposes of the provisions of
S 7(1) of the Act.
2. The Equality Officer was wrong in law and in fact and
misdirected herself and acted in excess of jurisdiction
in concluding and recommending that the appellant's plant
in Clonmel and its plant in Carrick-on-Suir come within
the definition of 'place' as defined in the Act.
3. The Equality Officer was wrong in law and in fact and
misdirected herself in holding that the Appellant was
discriminating in relation to rates of pay within the
meaning of the Act.
4. The Equality Officer was wrong in law and in fact and
misdirected herself in recommending that such of the
Respondents to this Appeal who had at some time carried
out examining duties or marking out duties were entitled
to equal pay with the named comparator.
5. The Equality Officer was wrong in law and in fact and
misdirected herself in recommending an award of equal pay
retrospective to 29th June, 1984, or any other date.
6. The Equality Officer was wrong in law and in fact and
misdirected herself in failing to consider whether the
Respondents to this Appeal performed like work inter se.
7. The Equality Officer was wrong in law and in fact and
misdirected herself in failing to decide whether the
Respondents to this Appeal were performing like work
inter se so as to enable them to claim as a group.
8 The Equality Officer was wrong in law and in fact and
misdirected herself in her interpretation of S 3 of the
Act and its application to the facts of this case.
9. The Equality Officer was wrong in law and in fact and
misdirected herself in failing to take into account
matters which she ought to have taken into account in
arriving at her conclusion that the Respondents to this
Appeal were entitled to equal pay with the named male
comparator.
10. The Equality Officer was wrong in law and in fact and
misdirected herself by taking into account matters which
she ought not to have done in relation to the Respondents
claim for equal pay.
11. The Equality Officer was wrong in law and in fact and
misdirected herself in making the recommendation which
she did which was against the evidence or alternatively
inconsistent with the evidence adduced on behalf of the
Appellant and was perverse.
12. The Equality Officer was wrong in law and in fact and
misdirected herself in recommending that the Respondents
to this Appeal be entitled to equal pay with the named
male comparator.
13. The Equality Officer was wrong in law and in fact and
misdirected herself in failing to consider adequately or
at all the grounds put forward by the Appellant pursuant
to the provisions of S 2(3) of the Act for the payment of
different rates to its employees.
14. The Equality Officer's investigation was unsatisfactory.
15. The Appellant will rely on such further or other grounds
of Appeal as may arise on the hearing of this Appeal or
as it may be advised. And the Appellant will seek from
the Labour Court at the conclusion of the hearing of this
Appeal a determination to the effect that the Equality
Officer was incorrect in her Recommendations, whereby she
Recommended the award of equal pay with retrospectivity
to the Respondents to this Appeal in relation to
examining and marking out duties, and further a
Determination that none of the Respondents to this Appeal
are entitled to any of the reliefs Recommended by the
Equality Officer."
13. The Labour Court heard the appeals on 13th April, 1989 and
20th June, 1989. The Court carried out work inspections at both
factories on the 13th and 14th April, 1989. The submissions from
the parties are attached as appendices to this determination. The
parties also expanded orally on these submissions at the Court
hearings.
*DETERMINATION:
14. The Court considered, in these appeals, the Equality
Officer's Recommendations, the employer's submissions and, the
Union's submissions in respect of the various recommendations.
The Court visited the two factories involved and examined the work
of the claimants and the comparator. The Court then held a second
hearing to process further submissions from both sides including a
submission from the consultant who had carried out a job
evaluation exercise on behalf of the employer, subsequent to the
issue of the Equality Officer's Recommendation and the Unions
submissions in relation to Job Evaluation techniques.
Having carefully considered all of these matters and having
carried out its own examination of the work the Court has come to
the following conclusions in relation to the points of appeal
made.
Section 7(1)
The Court takes the view that the Equality Officer was correct in
her finding on this matter in para 26 of EP11/88.
"In my opinion, therefore, prior to the Union's letter to me
of 26th June, 1987, a dispute existed concerning the
entitlement of each individual female employee at the
Company's plants at Clonmel and Carrick-on-Suir, including
the claimants in the case here concerned, to equal pay with
their male colleagues, including the comparators named in
this Recommendation and this constituted a dispute for the
purposes of section 7(1) of the Act. The dispute in respect
of 203 of the claimants was referred to me for investigation
on 29th June, 1987 and the dispute in respect of a further 14
claimants was referred for investigation on 19th February,
1988."
Section 3(b) 13/88 Union appeal
The Court is of the view that, while the work is similar in
nature, the differences are not of small importance and occur on
an ongoing basis. The Court agrees with the Equality Officer
findings on this point. The appeal that conditions being similar
would justify, on its own, concession of the claim is not
accepted, given that there are substantial differences in the
work performed. Such an interpretation could mean that similarity
in nature and conditions which do not differ significantly, would
warrant the same pay despite large differences in the work
involved, and, in the Courts opinion, would not be a correct
interpretation of Sect 3(b) and Section 2(1) i.e. that both are
employed on like work.
Section 3(c) - E.P. 11/88; 13/88 14/88 (cleaners) and 15/88
(Union's Appeals).
The Court, having considered all the submissions made and having
examined the work of the claimants and the comparator has come to
the conclusion that the reasoning and findings of the Equality
Officer are correct and upholds those Recommendations. The Court
therefore rejects these appeals.
Section 3(c) 12/88 14/88 (Marking Out).
(Employer's Appeal)
The Court, having considered all the submissions made and having
examined the work of the claimants and the comparators, and aware
of the fact that the comparator's job was changed in May, 1987,
has come to the conclusion that the reasoning and findings of the
Equality Officer are correct for the periods both before and after
the comparator's job changed and upholds these Recommendations.
The Court therefore rejects these appeals.
Grounds other than Sex Sect 2(3)
The Court has considered the arguments put forward under this
Section. In the first instance, the Company claims the
comparators work is of higher economic value. In light of the
fact that the claimants' jobs were found to be equal to the
comparator by the Equality Officer, the onus would be on the
Company to show the Court what additional elements of the work not
recognisable in the Job Evaluation exercise constitutes higher
economic value. This they have not done.
On the further issue of the financial impact of the findings, the
Court is obviously aware that changes resulting from the Equality
Officer's findings and this Determination will increase costs and
obviously hopes that any difficulties arising will be overcome but
would point out that they have no discretion in regard to the
application of the Act which is in effect the national application
of European Law.
Section 1 of Act, 1974
The Employer has also contended that the claimants in the
Carrick-on-Suir factory are not employed in the same place within
the meaning of the 1974 Act. The concise O.E.D. defines locality
as inter alia - district near, site or scene of something. The
word clearly does not have the precise connotations which the
employers arguments appear to attribute to it. In this case the
two plants are 12 miles apart and for the purpose of the Company's
business are run as a single unit under a single management and
the Court using the ordinary natural meaning of the word in these
circumstances has no difficulty in accepting the two plants as
being in the same locality for the purpose of the Act.
Section 8(5)
The case argued by the Employer regarding the Court's jurisdiction
and its power to award retrospective payments has already been
dealt with by the Court in its determination DEP489 Leaf - FWUI.
"The Court is of the view that when it determines that an
equal pay situation exists it establishes for the claimants
an entitlement to equal pay for as long as that situation
existed. The Act of 1974 does not set any limitation on that
entitlement. It does however limit the amount which the
Civil Court can award if an implementation order is sought.
Taking into account the judgement of the European Court in
the Defreene versus Sabena case which established the 8th
April, 1976 as the date from which Article 119 of the
European Treaty of Rome has direct application and the
limitation set by the Oireachtas under Section 8(5), the
Court considers that each of the claimants should be paid the
same rate of remuneration as the comparator with effect from
a date three years prior to the lodgement of their claim."
The Court takes a similar view and rejects the appeal on this
issue.
The Court therefore determines that the named claimants employed
on Examining and Marking out are entitled to equal pay with the
named male comparator with effect from the dates recommended by
the Equality Officer.
DETERMINATION:
This is available in the Full Document only.
~
Signed on behalf of the Labour Court
John O'Connell
_____________________________
29th January, 1990 Deputy Chairman.
M.D./J.C.