Labour Court Database __________________________________________________________________________________ File Number: AEP9011 Case Number: DEP915 Section / Act: S8(1)AD Parties: EASTERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Board against Equality Officers Recommendation No. EP11/1990 and appeal by the Union seeking implementation of Equality Officers Recommendation No. EP11/1990
Recommendation:
This Document can be found in the full Document.
Division: Ms Owens Mr Collins Mr Walsh
Text of Document__________________________________________________________________
AEP9011 DEP591
ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. 5 OF 1991
PARTIES: EASTERN HEALTH BOARD
(REPRESENTED BY BYRNES COLLINS MORAN)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Board against Equality Officers Recommendation
No. EP11/1990 and appeal by the Union seeking implementation of
Equality Officers Recommendation No. EP11/1990
BACKGROUND:
2. The workers concerned are employees of the Eastern Health
Board and work at St. Brendan's Hospital. The Hospital is a
psychiatric hospital and provides in patient and out patient
psychiatric services. On 7th February, 1990 the Union requested
an investigation by an Equality Officer into a dispute of an equal
pay claim on behalf of 62 female domestics who claim to perform
like work with named comparators under the terms of Section
3(a),(b) and (c) of the Anti Discrimination Pay Act, 1974.
2. The Equality Officer in Recommendation No. EP11/1990 on 30th
November, 1990 (appendix I) recommended that the claimants are
entitled under sectin 2(1) of the Act to the same rate of
remuneration as the named comparators. It was further recommended
that the new rate be effective from 7th February, 1987.
Appeal against Recommendation
3. 1. The Board appealed against the Recommendation by letter
dated 17th December, 1990 (appendix 2). No grounds for appeal
were stated in the letter. The Union appealed the
Recommendation by letter dated 9th January, 1991 (appendix 3)
stating as grounds for appeal that the Board have refused to
implement the terms of the Equality Officers Recommendation.
2. The Court heard the appeals on 24th April, 1991. The
written submissions made to the Court at the hearing are
enclosed as Appendices 4 and 5.
*DETERMINATION:
5. Arising from the Equality Officer's Recommendation No. EP
11/1990 issued on 30th November, 1990 the Health Board by letter
dated 17th December, 1990 formally lodged an appeal against the
recommendation. The letter addressed to the Registrar of the
Labour Court stated:-
"I wish to lodge an appeal on behalf of the E.H.B. against
Equality Officer's Recommendation No. EP 11/1990 (File No. EP
8/1990 dated 30/11/90 concerning a dispute between this Board
and 62 female domestics (S.I.P.T.U.)
The above letter was received at the Labour Court on 19th
December, 1991, 17 days after the date of the said recommendation.
S.I.P.T.U. by letter dated 9/1/91 lodged an appeal on behalf of
its 62 members involved for a Determination that Recommendation
No. EP 11/1990 had not been implemented. That letter was received
on 9th January, 1990, 40 days after the date of the said
recommendation.
Both appeals fall to be dealt with under Section 8 of the
Anti-Discrimination (Pay) Act of 1974. The relevant clauses of
Section 8 are 8(1)(a) and (e).
Section 8(1)(a) states, "A party to a dispute in relation to
which an equal pay officer has made a recommendation may
appeal to the Court against the recommendation or may appeal
to the Court for a determination that the recommendation has
not been implemented".
Section 8(1)(e) states "An appeal under this section shall be
lodged in the Court not later than 42 days after the date of
the equal pay officer's recommendation and the notice shall
specify the grounds of the appeal".
The letter of appeal dated 17th December, 1990 from E.H.B. does
not comply with Section 8(1)(e) as no grounds of appeal are
specified.
The EHB did subsequently by letter dated 12th March, 1991 make it
clear that the only ground of appeal which would be put forward
was that there exist grounds other than sex for paying different
rates of remuneration within the meaning of Section 2(3) of the
Act. As this letter was dated more than 42 days from date of
issue of EP 11/90 it does not comply with the terms of Section
8(1)(e).
The Court has considered all the arguments put forward by the
parties. The language of the relevant section of the Act is clear
and unambiguous stating that the notice shall specify the grounds
of appeal and the Court cannot accept the Board's contention that
reference to the specification of grounds of appeal is not
mandatory.
The Court therefore finds that the appeal of the EHB dated 17th
December, 1990 does not comply with Section 8(1)(e) of the Act of
1974 and accordingly it is dismissed.
However, in addressing the appeal made by the Union, the Court
considered the substantive matter of the Equality Officer's
Recommendation and in doing so considered the arguments of the
E.H.B. made under Section 2(3) of the Act.
"RED-CIRCLING" AS A DEFENCE UNDER SECTION 2(3) OF THE ACT OF 1974
The Court accepts that "red-circling" is a recognised practice in
industrial relations and has even on occasions been the means by
which industrial disputes have been resolved. If however, such a
concept is put forward as a defence against a claim for equal pay
it is essential that the Court in reaching a determination
consider, (1) the reasons for the application of "red-circling"
and (2) be satisfied that there was an acknowledgment by the
parties of its existence.
In this instance, after careful consideration of the submissions
put forward by the parties to the appeal, the Court has come to
the conclusion that the defence must fail, for the following
reasons:
While not disregarding developments in earlier years, it would be
correct in the Court's opinion to concentrate on the position
subsequent to 1979, when female attendants succeeded in a claim
for equal pay with male attendants (EP33/1979). Since that time,
it is accepted that due to various changes in the psychiatric
services the duties of attendants have inevitably altered, with a
shift in emphasis on particular duties brought about to a large
extent by the patient composition in any particular institution/
hospital. In this respect, a situation developed in St. Brendan's
which resulted in a reduction in patient care (on-hand) duties and
an increase in domestic duties. That was the acknowledged
position in 1989 when agreement was reached between the parties
that instead of each attendant being required to undertake both
types of duties, a selected group of attendants was designated to
patient care (on-hands) duties and the remaining twenty four to
domestic duties. It is claimed by management that this division
of duties resulted in an agreement whereby there would be a
reduction in the rate for domestic duties only but that existing
employees involved would retain their current rate on a personal
basis, i.e. "red-circling". The existence of such an agreement is
refuted by the Union. The Court notes that the only area of
agreement within the submissions insofar as "red-circling" is
concerned is in relation to it being referred to during the
discussions on the division of work. Both parties however put a
different emphasis on that reference. The Union claims that it
was a veiled threat aimed at thwarting its objective of dividing
the duties. The employers claim that it was the first step in an
eventual agreement on "red-circling".
In considering the issue of "red-circling" the Court reverts
initially to (1) above, - the reasons for its application. On
this point the Court does not consider that it has to decide
whether or not there were valid reasons for "red-circling".
Obviously both parties have their own views on this, as is
evidenced by the reference to it by the employers during the
discussions on the division of duties, and the Union's
interpretation of that reference as being a threat. What the
Court does have to consider however, it being the principle point
in dispute, is, in line with (2) above, whether or not a
recognised, factual, and acknowledged position of "red-circling"
existed.
On the evidence available to it the Court has come to the
conclusion that, on balance, no such position existed. Even if it
is conceded that a "formal agreement" is not required to
substantiate the existence of such an arrangement, it is essential
in the Court's opinion that all who are party to such arrangements
are fully aware of the circumstances which brought it into
operation, and the manner in which it is being operated, for
example, amount involved, terms of payment, etc. In this instance
not one of these factors exist. Nineteen (19) of the comparators
in fact stated in writing that they were not party to any such
agreement and were unaware of the existence of such. The only
reference to "red-circling" between the parties throughout the
overall transaction was during one of the early discussions on the
issue of divided duties. No further attention was afforded to the
rates of pay for the domestic duties side of the newly-divided
operation and as a consequence both the patient care (on-hands)
and domestic duties only attendants continued on the same rate.
The Court notes that it is accepted that the claimants perform
"like work" with the comparators. The only defence presented was
that as a "red circle" situation existed there was grounds other
than sex for the different rates of pay. For the reasons set out
above the Court does not find the Board's arguments sustained and
accordingly rejects its defence under Section 2(3) of the Act.
It is common case that the Equality Officer's Recommendation No.
EP11/1990 has not been implemented by the E.H.B.
The Court therefore determines that the claimants are entitled to
the same rate of remuneration as the named comparators effective
from the dates set out in the Equality Officer's Recommendation
dated 30/11/90 (EP11/1990, Para. 27).
DETERMINATION:
This Document can be found in the full Document.
~
Signed on behalf of the Labour Court
Evelyn Owens
___________________________
19th August, 1991 Deputy Chairman.
J.F./J.C.