Labour Court Database __________________________________________________________________________________ File Number: AEP903 Case Number: DEP913 Section / Act: S8(1)AD Parties: TEAGASC - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Equality Officer's Recommendation No. EP13/1985.
Recommendation:
The Court's determination is available in full document only.
Division: CHAIRMAN Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEP903 DETERMINATION NO. DEP391
ANTI-DISCRIMINATION (PAY) ACT, 1974
PARTIES: TEAGASC
(Formerly An Chomhairle Oiliuna Talmhaiochta/ACOT)
(Represented by the Federation of Irish Employers)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Equality Officer's Recommendation
No. EP13/1985.
BACKGROUND:
1. In April, 1986, The Labour Court, made a Determination under
the Anti-Discrimination (Pay) Act, 1974 that one hundred and
five female Agricultural Development Officers employed by An
Coimairle Oiliuna Talmhaiochta (ACOT) were entitled to the
same rate of pay as a named male Agricultural Development
Officer with effect from January, 1st 1983.
2. A.C.O.T. appealed the Determination to the High Court on four
specific grounds, three of which were rejected by the Court
in its judgement dated 13th April, 1989. On the fourth
ground - that the Labour Court was wrong in law in
determining that "like work" existed - Miss Justice Carroll
stated as follows:-
"In order to make a finding of like work under Section
3(b) the Labour Court must find certain basic facts.
It must find that between the comparator and each of
the complainants
(1) that 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.
Since there are multiple Claimants it would be possible
to segregate these into different categories, where
there are no differences inter-se. But that too
requires a decision based on evidence.
There was evidence on which the Labour Court could find
that the work was of a similar nature, viz the common
job description. But there is nothing to show that
there was any evidence before it in relation to the
Claimants and the male comparator whether there were
any differences between the work performed and the
conditions under which it was performed so that it
could make an appropriate finding of fact on that
aspect. The Labour Court could not take the findings
of the Equality Officer in the earlier case to use as
evidence of like work in this case. Those findings
were not transferable. Also, on the claimants
evidence, the working relationship under the scheme had
been transformed.
In my opinion the appropriate thing to do is to remit
the matter to the Labour Court so that it may hear
evidence to enable it to make findings of fact in
relation to the matters specified in Section 3(b). If
it finds in favour of "like-work" then the Claimants
will be entitled to equal pay."
(3) At a Labour Court hearing on 8th May, 1990, the parties
submitted evidence on the matters remitted to the Court by
Miss Justice Carroll. The evidence was by way of written
submissions and oral arguments and was supported by daily
work-diaries of two of the claimants and of the male
comparator. Further hearings took place on 26th April and
14th May, 1991.
(4) Teagasc has succeeded ACOT as the employer in this case; the
employer will be referred to as Teagasc in this
Determination.
MAIN ARGUMENTS OF PARTIES
In summary form the arguments put forward by Teagasc that like
work, as defined under Section 3(b), did not exist between the
Claimants and the Comparator, were as follows:-
1. That the work performed by the Claimants and the
Comparator was not "of a similar nature" because it
derived from different technical bases, was more than
marginally outside of the classification of Section
3(a) (of the Act) and required different skills and
experience. Teagasc also argued that "similar nature"
relates to work as actually performed and does not mean
"similarly based".
2. That there were differences inter-se between Poultry
Advisors arising from differing mixes of duties and
differences between the work performed by Poultry
Advisors and Farm Home Advisors.
3. That between the Claimants themselves and between the
Claimants and the Comparator there were on-going
differences with reference to the ratios of the various
types of work performed.
- A higher proportion of time was spent by the
Comparator than by the Poultry Advisor on
site with clients and considerably less time
was spent by the Farm Home Advisor than by
the Poultry Advisor.
- The work of the Comparator was of a more
technical nature than that of either the
poultry advisors or the farm home management
advisors; furthermore the work of the poultry
advisors was more technical than that of the
farm home management advisors.
- That the Comparators clients tended to be in
the more commercial end of the market, while
the Poultry Advisors (with exceptions) tended
to be at the less commercial end of the
market.
For its part, the Union argued
- that the work of the Claimants and that of
the Comparator was "of a similar nature" in
that both supplied a specific advisory
service to farming community clients within
the remit of Teagasc.
- that the Labour Court had already found that
"work that was similar in nature could be
"completely different in character".
(Dowdall O'Mahony - DEP 6/1987). It
followed, therefore, that work did not have
to be the same to be "similar in nature".
- that using the criteria set out by the
Labour Court itself in DEP6/87 there could
be no doubt but that this claim meets the
requirements for classification as "work of
a similar nature".
- that the employer did not have "definite
criteria free of sex bias" for its job
classification, a fact recognised by the
Court in its earlier Determination (DEP
8/85) on this claim.
- that the Union was not relying on the
differences between the work occurring
infrequently, but on the fact that the
differences were "of small importance in
relation to the work as a whole".
- that the grading system in Teagasc is a
mirror image of the public service grading
system which encompasses within one grade
broadly similar jobs, some of which are
stressful in relation to the tasks carried
out and some of which are of a totally
repetitive nature. None of these
differences merit a higher rate of pay or a
higher grade, no importance being attached
to the differences in tasks performed,
whatever the sex of the employee.
- that the 20% differential between the
claimants and the comparator arose only
because of sex discrimination which was
clearly historic in origin.
- that such differences as existed between the
claimants and the comparators also existed,
often to a greater degree between other
advisors - Horticultural, Agricultural and
Pig.
- that the male dominated category operated
under a common job description and all the
male employees were paid equally.
- that the only substantial difference
occurred in pay the claimants (all female)
being paid less than the male dominated
category.
- that the claimants worked as part of a
district team on an equal footing with all
other advisors in that team, (all working in
line with the staff scheme) and all worked
under the staff scheme
- that the attitude towards the claimants, as
reflected in the lower rate of pay was
linked to the historic attitude towards the
women as workers who had women as their main
clients prior to 1983.
COURT'S DETERMINATION
Differences Inter-Se (Claimants)
GENERAL
In making their submissions both the Employer and the Union
divided the claimants into two categories - Poultry Advisors and
Farm-Home Advisors. The Court examined the work of each category
as detailed in the submissions to establish whether within each
group there were differences in the work performed by the
claimants inter-se. This examination was undertaken in view of
Miss Justice Carroll's judgment which states "Since there are
multiple claimants it would be possible to segregate these into
different categories, where there are no differences inter-se.
But that too requires a decision based on evidence".
Poultry Advisors
Teagasc stated in its submissions that the work carried out by
Poultry Advisors had some individual and important differences
within the category relative to the area in which it is carried
out. It stated that the duties "of a Poultry Advisor operating in
an area in which poultry production was carried out on a
relatively large commercial basis would have, perhaps, a different
balance of duties compared to those of a poultry advisor operating
in an area in which poultry farming was on a relatively small
scale". Teagasc argued that these different balances of duties
could be interpreted as important in relation to the work as a
whole thus establishing that poultry advisors were not engaged on
"like-work" inter-se.
It is clear to the Court that due to regional and local variations
under many headings, there are variations in the extent of time
devoted by individual A.D.O.s (irrespective of speciality) to the
various facets of the service which they provide and also in the
extent of the methods through which it is provided. Such
distinctions are inherent in the job and cannot be managed into
uniformity even for advisors within one speciality. This feature
had been recognised by ACOT in the Staff Scheme which stated in
respect of Horticultural Advisors - "as in the case of
agriculture, there is a wide variation between counties in the
range and incidence of commercial horticultural enterprises,
requiring a flexible deployment of advisory/development staff".
The Court regards the different balances of duties of Poultry
Advisors referred to by Teagasc as inherent in the service
described above and regards them as of small importance in
relation to the work as a whole. Accordingly the Court finds that
Poultry Advisors covered by this case perform like-work inter-se.
Farm Home Advisors
During the hearings, Teagasc management advised the Court that it
accepted that Farm Home Advisers were engaged on "like-work"
inter-se.
Conclusion
There are two groups of claimants, namely - Poultry Advisers and
Farm Home Advisers, and the Court finds that within each group all
claimants are engaged in "like-work". Therefore the work of each
group must be considered with that of the comparator for the
purposes of Section 3(b).
WORK OF A SIMILAR NATURE:
Work that is of a similar nature to other work can, under Section
3(b) be different in some respects to that other work. The degree
and importance of the difference is the relevant consideration in
determining whether the work is "like work" under the section.
In this particular case the work of both the Claimants and of the
Comparator falls within the specific objectives which were set out
by ACOT for its Advisory Services; it is carried out on an
integrated basis within a team framework and is governed by a
common job description. These matters are clearly set out in the
staff scheme for Agricultural Development Officer Grades published
by ACOT in November, 1983. In considering these matters Miss
Justice Carroll stated in her judgment that "there was evidence on
which the Labour Court could find that the work was of a similar
nature, viz the common job description".
This observation was corroborated by the written submissions of
the parties (See Appendices) and the oral evidence presented at
the Court hearings. These confirmed that the work actually
performed by both the claimants and the comparator conformed to
the objectives, organisational structure and job descriptions
contained in the Staff Scheme.
The Court considered fully the numerous arguments put forward, and
had regard in particular to the following facts:
1. All the A.D.O. jobs including those of the claimants
and comparators require specified educational
qualifications. (The Court's findings in relation to
the use of these qualifications as a basis for
determining remuneration in this case are to be found
in DEP No. 8/85 - and were not disturbed by the High
Court findings);
2. The work performed by the A.D.O.s including the
claimants and the comparator is advisory, educational
and developmental in nature;
3. The work of A.D.O.s is client centred within the
guidelines stipulated by Teagasc - primarily the
implementation of Government and E.C. policies in
relation to their own specialisations;
4. The A.D.O.s function as part of a team under the
control of the District Manager;
5. The A.D.O.s use visits, training schemes, liaison with
community groups as a method of operation;
6. The A.D.O.s undergo further training in their own
fields and use professional trade journals as a means
of keeping up to date on new developments;
The Court consequently finds that the work performed by the
claimants and by the comparator within the ADO structure is "of
similar nature" and does not accept the restrictive and narrow
interpretation of "similar nature" advanced by the employer.
Having made a finding that the work is of a "similar nature", the
Court must now consider the differences in the work performed by
the claimants and the Comparator.
Arriving at an Assessment Method
1. Under Section 3(b), once the work of the claimant and the
comparator is found to be of a similar nature, it is
incumbent on the Court to identify differences between the
work of each the frequency of differences as occuring and
whether these differences are of small importance in relation
to the job as a whole.
2. The Employer has argued that "like work" under Section 3(b)
means work which is predominantly the same and where any
differences are marginal. In such cases rudimentary
measurement and/or general knowledge of the workplace could
be depended upon to make a reasonable assessment.
3. If the Act limited the use of 3(b) to such circumstances,
then a range of cases where work is determined as being of a
similar nature but in which the subject matter or product
involved in the work is different would be ruled out of
consideration under this section. Examples of such cases
could include teachers of different academic subjects,
salespersons selling different products, social service
people providing different specialist services. It is the
Court's view that such a limitation was not intended or
enshrined in the legislation.
4. Work differences are matters of fact to be established from
the evidence presented by the parties. Section 3(b) is
silent in regard to the basis on which an assessment of the
differences should be made; unlike Section 3(c) it does not
indicate factors which should be taken into account.
Accordingly it is for the Court to formulate a basis for
assessment of differences from which to make an evaluation as
to whether those differences are of small importance in
relation to the work as a whole.
5. The importance of work differences is not amenable to precise
measurement. Therefore the Court considers it is valid and
appropriate to investigate any evidence directly or
indirectly impinging on the work under examination, which
gives an insight into the methods (formal or informal) used
by the employer generally to assess the importance of
differences in work and the outcome of such assessments. The
Court also considers that an applied practice is an important
element to be taken into account in assessing the importance
of work differences.
COMPARISON OF WORK PERFORMED BY
CLAIMANTS AND COMPARATOR
GENERAL
Having determined that the work of Poultry Advisers and Farm Home
Advisers is of a similar nature to the work of the Horticultural
Adviser, the Court must now consider, from the evidence,
submitted, whether the work performed by them meets the remaining
requirements of Section 3(b) to constitute "like-work".
Teagasc has argued that there are differences between the work
performed by Poultry Advisers and the Horticultural Adviser and
between the work performed by the Farm Home Advisers and the
Horticultural Adviser which because of their importance to the
work as a whole, do not meet the requirements of Section 3(b) to
be a regarded as "like-work". The Court examined these
differences, which in general terms are as follows:-
- There is a different technical basis for the work of
the comparator and that of the claimants.
- The work of the Horticultural Adviser is much more
technical than the work of the Poultry Adviser. The
work of the Poultry Adviser is in turn more technical
than that of the Farm Home Adviser.
- There is between the work of the comparator and that
the Claimants different ratios in the various kinds of
work performed i.e. office, field, seminar-type work.
- There is a difference between the level of commercial
clients serviced by the Comparator and those served by
the Poultry Advisers.
The Union did not dispute that these differences existed or that
they were continuous, but claimed that they were of small
importance to the work as a whole.
"TECHNICAL BASIS"
Teagasc submitted that the "Technical basis" of the work performed
by the Claimants and that of the comparator were significantly
different and described the differences as follows:-
Poultry Advisers:- Their work is connected with Poultry
and Egg production, and the animal
husbandry of turkeys, geese,
pheasants and rabbits.
Farm Home Advisers:- Their work is Sociological, and
connected with the quality of life
of farming-families rather than with
farm- production.
Horticultural Advisers:- Their work is connected with the
production of vegetables, fruit,
flowers, trees.
"Technical Basis", as used by Teagasc, is interpreted by the Court
as the subject matter of the speciality of each of the claimants
and the comparator. The subject matter is clearly different in
each case and the question is whether such difference is of small
importance to the job as a whole.
Using the same interpretation, specific evidence is not necessary
to substantiate the view that each of the various groupings of
A.D.O.s viz. Tillage, Cattle, Pig-production, Horticulture,
Poultry and Farm Home Management Advisers, has a distinct
technical basis from that of the others. Therefore, it is
appropriate for the Court to examine how these differences were
evaluated by Teagasc and dealt with generally.
The difference in technical basis and the resultant impact on the
job does not give rise to any difference in pay for A.D.O.s other
than the Claimants. Therefore, in practice, a difference in
technical basis is not considered by Teagasc to be other than of
small importance, except in the case of the Claimants.
During the hearings Teagasc confirmed that a formal evaluation of
the importance of differences of technical basis had not been
undertaken but stated that in the case of A.D.O.s other than the
Claimants the requirement of a University degree qualification was
historically taken as implying an equal technical basis between
those ADO's. Teagasc stated that the differences in the technical
basis of all A.D.O.s, including the claimants and the comparator,
were related to the educational requirements of the particular
job.
Having regard to the facts:-
- that there are patent differences between the technical
basis of each group of A.D.O.s;
- that the differences have not been deemed to merit
evaluation and distinctive grouping except for the
Claimants, but have, in fact been deemed of small
importance;
- that the importance ascribed by Teagasc to the
difference in the technical basis of the jobs of the
Claimants viz a viz that of the Comparator is in
reality based on differences in educational
qualifications;
- that the Court found in Determination No.8/85 that
differences in entry standards was not a ground which
could justify paying the claimants a lesser rate of pay
than the comparator and that this finding was not
disturbed by the High Court;
the Court considers that the difference in the technical basis of
the work performed by both Poultry Advisers and Farm Home Advisers
compared to the technical basis of the work performed by the
Horticultural Adviser is of small importance in relation to the
work as a whole.
TECHNICAL CONTENT:
Teagasc submitted that the work of the Comparator was of a "much
more technical nature" than that of either group of claimants, and
that the work of Poultry Advisors was "more technical" than that
of Farm Home Advisors. In support of this argument Teagasc cited
the services provided by the comparator concerning intensive
protected cropping, the application of soil analysis results, and
environmental control and finances.
For its part, the Union in respect of Poultry Advisers referred to
the technical aspects of poultry production, disease and pest
control, and the financial implications for the clients involved.
In relation to Farm Home Advisers the Union stressed the technical
knowledge and inter-personal skills required in dealing with
sometimes sensitive but important matters such as inheritance,
wills, development of farm-homes for tourism, accounts and the
management of small businesses.
There was some conflict of evidence regarding the duties and
responsibilities of the comparator viz a viz the claimants,
particularly the Farm Home Advisers. On closer examination this
conflict simply demonstrated the overlapping nature of some
aspects of the service and the fact that Advisers worked as a
team.
Although both sides submitted copious detail of the jobs performed
and the technical content involved, neither suggested how the
technical content differences should be evaluated. Teagasc did
not formally evaluate the differences when the job classification
was drawn-up but relied on "a higher level of education and
training".
Having considered all the arguments made, the Court formed the
view that the differences in technical content between the work
performed by the Poultry Adviser and that performed by the
Horticultural Adviser, and between the work performed by the Farm
Home adviser and that performed by the Horticultural Adviser were
only the natural result of the different technical bases from
which they individually worked and were of small importance to the
job as a whole.
Ratios of Work:
Office, Field, Seminar.
The job of both the Claimants and the Comparator as laid down by
Teagasc is, in relation to their own speciality, to "engender
innovation, to educate and to transfer expertise". It is agreed
that the workers fulfil this responsibility through common methods
such as visits to clients, liaison with Community groups, running
of seminars and the provision of an office service. It is against
this background that the Court has examined the Teagasc submission
that the Claimants spend more time than the comparator working
from the office, spend less time in one to one contact with
clients and more time on seminar work and that these differences
are of significant importance to the job as a whole. Teagasc also
stated that the Poultry Adviser spends more time than the Farm
House Adviser in one to one contact with clients.
The parties have no method of measuring the importance of degrees
of difference in the factors now being challenged by Teagasc.
Neither did they advance any evidence on how they evaluated these
factors for the purposes of their submissions. Teagasc simply
claimed that they are matters of significant importance and the
Union has claimed the opposite. In the circumstances, the Court
deemed it appropriate to examine how the factors at issue were
dealt with in relation to Horticultural Advisors as a group and to
consider if they were dealt with in the same manner in the case of
the claimants.
It is clear from the evidence submitted that there are regional
and local variations in such matters as the size of farm-holdings,
climatic conditions, soil types, economic circumstances, the size
and density of commercial undertakings directly involved. Thus
the extent of time devoted by individual A.D.O.s within the same
discipline to the various facets of the service which they provide
and the means through which they provide it, differs from one ADO
to another. The inevitability of differences in the job mix of
individual Horticultural Advisors in relation to the number, size
and sophistication of the commercial enterprises they service was
recognised by Teagasc in the staff Scheme which stated:-
"As in the case of agriculture, there is wide variation
between Counties in the range and incidence of commercial
horticultural enterprises, requiring a flexible deployment
of Advisory/development staff".
The statement went on to describe the various deployment options
in the organisation of the work of Horticultural Advisors.
The differences in the commercial structure of the enterprises
they service also give rise to differences in the ratios of office
work and one to one client contact between individual
Horticultural Advisors. Teagasc confirmed that the differences
were also influenced by seasonal factors.
The Court is conscious of the fact that irrespective of the mix of
the factors in his/her job, each individual Horticultural A.D.O.
received the same rate of pay. Therefore the conclusion to be
drawn is that Teagasc did not regard the differences in the
factors under consideration as of sufficient importance to be
reflected in rates of pay. In other words they were of small
importance in relation to the job as a whole.
It is acknowledged that differences also exist in the mix of work
among the Claimants. As the Claimants are all paid the same rate
of pay it can reasonably be assumed that, as in the case of
Horticultural Advisors, Teagasc regarded these differences as of
small importance in relation to the Claimants jobs as a whole.
Therefore the question left to be answered is why the differences
in the mix of work performed by the comparator and by the
claimants is regarded by Teagasc as of small importance in
relation to the work of the claimants and in relation to the work
of the Horticultural Advisors and at the same time regarded by
them as of significant importance when comparing one group to the
other.
In considering this question the Court had regard to its finding
that the work performed by the Comparator and the Claimants is of
a similar nature, to the evidence presented that the differences
are inherent in the jobs, that they arise in the context of common
work practices and that their variation is only a matter of
degree. In the light of these considerations the Court did not
find evidence, free of sex bias, to justify Teagasc in treating
the factors at issue as being of greater importance when comparing
the mix of work performed by the Comparator with that performed by
either the Poultry Advisers or the Farm Home Advisers than when
evaluating those factors in respect of the individual groupings.
The Court therefore concludes that differences between the
Comparator and the claimants in respect of time spent on office
work, one to one contact with clients and seminar work are matters
of small importance in relation to the job as a whole.
COMMERCIAL LEVEL OF SERVICE:
In identifying differences between the work performed by the
Comparator and by the Poultry Advisers, Teagasc stated that "The
Clients with whom the horticultural adviser deals tend to be in
the more commercial end of the market. The Poultry Advisers
clients tend (with some exceptions in intensive, highly commercial
poultry production areas, where the whole level of poultry
production is raised by the existence of very large commercial
poultry production enterprises) to be in the smaller end of the
market". Teagasc claimed that this difference was of significant
importance to the job as a whole.
The Union argued that poultry advisers had clients in the top end
of the market, a fact conceded to a limited degree by Teagasc, and
that irrespective of size of commercial undertakings the same
skills, knowledge and competence were required of advisers.
At the hearings, the Court heard evidence that the largest poultry
units tended to be processor/producer undertakings which in the
main supplied their own technical/marketing expertise. However,
the more general commercial poultry units drew heavily on the full
range of expertise of the Advisers. Against this Teagasc claimed
that the comparator provided a full range of analytical and
technical services to all sizes of producers in his area. Teagasc
did not suggest that the processor/producer situation was
duplicated in horticulture.
In considering whether the differences as presented by Teagasc
were of small or significant importance to the job as a whole the
Court reverted to the statement in the Staff Scheme that "as in
the case of agriculture, there is wide variation between counties
in the range and incidence of commercial horticultural
enterprises, requiring a flexible deployment of
advisory/development staff". The deployment options included an
officer dealing with all commercial enterprises in an area and an
officer dealing with one enterprise in a number of districts
depending on the sophistication of the enterprise.
It is clear that Teagasc anticipated individual horticultural
officers dealing with clients at different commercial levels. But
these distinctions, which Teagasc regarded as inevitable, were
acceptable and did not give rise to any distinction in pay between
horticultural advisers. In other words the distinctions were of
small importance to the job as a whole.
The Court considers that distinctions in the commercial levels of
Poultry Adviser clients arise for the same reasons and are no
greater than in the case of horticultural advisers and therefore
considers that they are of small importance in relation to the job
as a whole.
CONCLUSION
The Court has found that:-
- work performed by Poultry Advisers is like-work inter-se,
- work performed by Farm-Home Advisers is like-work inter-se
(this point was conceded by the employer),
- work performed by both Poultry Advisers and Farm Home
Advisors is "of a similar nature" to work performed by the
Horticultural Adviser.
- specific Differences cited by Teagasc in relation to the
work performed by the Claimants and the comparator are of
small importance in relation to the job as a whole.
Having regard to these findings, to its assessment of the details
presented on the work performed, to the integrated nature of the
Advisory Service as a whole, to the common work methods and to the
common job description which was validated by the evidence of the
work performed, the Court concludes that Poultry Advisers and Farm
Home Advisers are employed on like work as the comparator a
Horticultural Adviser.
Having made a finding that the Farm Home Advisors were employed on
like work with the Horticultural Advisor at the date of the claim,
the fact, raised by Teagasc, that they were engaged on a training
programme in 1984 does not affect their entitlement to the rate
for the job.
The Court therefore determines that the Officers named in the
Equality Officers Recommendation No EP84/15 are entitled to the
same rate of remuneration as the Horticultural Advisor with effect
from 1st January, 1983.
DETERMINATION:
The Court's determination is available in full document only.
~
Signed on behalf of the Labour Court
Kevin Heffernan
2nd July, 1991 --------------
B. O'N/U.S. Chairman