DEP911

Labour Court Database __________________________________________________________________________________ File Number: AEP901 Case Number: DEP911 Section / Act: S8(1)AD Parties: ALLIED IRISH BANK P.L.C. - and - TWO FEMALE CLEANERS;THE SERVICES INDUSTRIAL;PROFESSIONAL TECHNICAL UNION

Subject:
Appeal by the Union against Equality Officer's Recommendation No. EP8/1989 concerning a claim by two female cleaners for the same basic hourly rate of pay as paid to two named male porters.

Recommendation:
4. The Court, having considered the appeal of the Union against
the recommendation of the Equality Officer EP8/1989, the views
oral and written expressed by the parties and having carried out
an inspection of the work of the claimants and the comparators at
the Bank premises, finds as follows in respect of the points of
appeal:-

1. Section 3(b) of the Act.

The Court having considered the views of the parties and inspected
the work finds that the work of the claimants is not similar in
nature to the work of the comparators. The Court does not accept
the Union contention that because both claimants and comparators
provide a service to the Bank it is immaterial what that service
may be to meet the requirements of the section. Further from the
inspection the Court concluded that the differences between the
work performed by the claimants and comparators were not of small
importance to the work as a whole.

Accordingly the Court concurs with the recommendation of the
Equality Officer and finds that the claimants do not perform like
work in terms of Section 3(b) of the Act to the work performed by
either of the comparators.

2. Section 3(c) of the Act.

The Court considered all the submissions of the parties and having
inspected the work on site of the claimants and comparators has
come to the conclusion that the demands made on the comparators in
respect of skill, mental effort and responsibility is greater than
the demands made on the claimants. Accordingly the Court finds
the work performed by the claimants is not of equal value to the
work of the comparators.


The claimants, therefore, are not employed on like work as defined
by the terms of 3(c) of the Act.

In the light of the Court's findings under (1) and (2) above the
Court concurs with the recommendation of the Equality Officer that
the claimants do not perform like work with that performed by
either of the comparators and are not entitled therefore to the
same basic hourly rate of pay as either of them in respect to
their work.

Accordingly the Court rejects the appeal against the
recommendation of the Equality Officer EP8/1989.

Division: MrMcGrath Mr Keogh Mr Devine

Text of Document__________________________________________________________________

AEP901 DETERMINATION NO. DEP191

ANTI-DISCRIMINATION (PAY) ACT, 1974


PARTIES: ALLIED IRISH BANK P.L.C.

and

TWO FEMALE CLEANERS
(REPRESENTED BY THE SERVICES INDUSTRIAL
PROFESSIONAL TECHNICAL UNION)

SUBJECT:
1. Appeal by the Union against Equality Officer's Recommendation
No. EP8/1989 concerning a claim by two female cleaners for the
same basic hourly rate of pay as paid to two named male porters.

BACKGROUND:
2. The background to this case is set out in Equality Officer's
Recommendation No. EP8/1989 which is attached as appendix I to
this Determination.

3. The Union by letter dated 22nd December, 1989 advised the
Court of its intention to appeal against the Equality Officer's
Recommendation under Section 8(1) of the Anti-Discrimination (Pay)
Act, 1974. The appeal is based on the following grounds:-

"1. That the Equality Officer erred in law and in fact in
deciding that the claimants do not perform similar work with
the comparators in terms of Section 3 (B) of the Act; and

2. That the Equality Officer erred in law and in fact in
deciding that the claimants with the exception of the
Supervisor, do not perform like work with the comparators
under Section 3 (c) of the Act; and

3. Such further or other grounds may arise at or be put
forward at the hearing of the above appeal."

The Court heard the appeal on the 11th May, 1990 and subsequently
carried out a work inspection at O'Connell Street branch of the
Bank on 9th November, 1990. The written submissions made at the
hearing are attached in appendices II and III.


DETERMINATION:
4. The Court, having considered the appeal of the Union against
the recommendation of the Equality Officer EP8/1989, the views
oral and written expressed by the parties and having carried out
an inspection of the work of the claimants and the comparators at
the Bank premises, finds as follows in respect of the points of
appeal:-

1. Section 3(b) of the Act.

The Court having considered the views of the parties and inspected
the work finds that the work of the claimants is not similar in
nature to the work of the comparators. The Court does not accept
the Union contention that because both claimants and comparators
provide a service to the Bank it is immaterial what that service
may be to meet the requirements of the section. Further from the
inspection the Court concluded that the differences between the
work performed by the claimants and comparators were not of small
importance to the work as a whole.

Accordingly the Court concurs with the recommendation of the
Equality Officer and finds that the claimants do not perform like
work in terms of Section 3(b) of the Act to the work performed by
either of the comparators.

2. Section 3(c) of the Act.

The Court considered all the submissions of the parties and having
inspected the work on site of the claimants and comparators has
come to the conclusion that the demands made on the comparators in
respect of skill, mental effort and responsibility is greater than
the demands made on the claimants. Accordingly the Court finds
the work performed by the claimants is not of equal value to the
work of the comparators.


The claimants, therefore, are not employed on like work as defined
by the terms of 3(c) of the Act.

In the light of the Court's findings under (1) and (2) above the
Court concurs with the recommendation of the Equality Officer that
the claimants do not perform like work with that performed by
either of the comparators and are not entitled therefore to the
same basic hourly rate of pay as either of them in respect to
their work.

Accordingly the Court rejects the appeal against the
recommendation of the Equality Officer EP8/1989.
~

Signed on behalf of the Labour Court


Tom McGrath
________________________
11th March, 1991 Deputy Chairman.
A.S./J.C.


LIST OF APPENDICES


Appendix 1. Equality Officer's Recommendation No. EP8/1989.

Appendix 2. Bank's submissions.

Appendix 3. Union's submissions.


APPENDIX I

EP8/1989

(File No EP8/1989)


THE LABOUR COURT

ANTI-DISCRIMINATION (PAY) ACT, 1974

EQUALITY OFFICER'S RECOMMENDATION NO. EP8/1989

PARTIES: ALLIED IRISH BANK

and

TWO FEMALE CLEANERS
(Represented by the Irish Transport & General Workers' Union)


Dispute:

1. The dispute concerns claims by Brigid Dunne and Christine
Foran, who are employed as Cleaners, for the same basic hourly
rate of pay as paid to Eddie Cummins and Jim Smyth, who are
employed as Porters, on the grounds that they perform like work
with that performed by them in terms of section 3(a), 3(b) and
3(c) of the Act.

Background:

2. The claimants and the male comparators in this dispute are
employed by the A.I.B. at its branch in Upper O'Connell Street,
Dublin and are the only Cleaners and Porters employed at this
branch.

3. In January, 1989, the Union requested equal pay for the two
claimants with the two named Porters, on the grounds that their
work was like work with theirs as defined under section 3 of the
Act but the Bank rejected the claim. By letter dated 28th April,
1989, the Union requested an investigation by an Equality Officer
of the dispute. Details of the Equality Officer's investigation
are contained in Appendix I.

4. Brief details of the conditions of employment, the hours of
work and the wages of the claimants and the comparators are as
follows:-


Claimants:

Their agreed working hours are 24 hours per week: Monday to
Thursday 8.00 a.m. to 1.00 p.m. and Friday 8.00 a.m. to 12 noon.
For convenience, however, they start work at 7.30 a.m. and finish
a half an hour earlier. They are paid a flat rate of #3.91 per
hour and are also entitled to service pay. Their basic pay,
excluding service pay, is #93.84 per week.

Comparators:

The Porters work a 40 hour week and receive over-time payment at
time and a half for time worked in excess of 40 hours per week.
They are paid in accordance with a 12 point incremental wage scale
which ranges from #159.69 to #189.33. Full details of the scale
are set out at Appendix II. Mr. Cummins is on point 12 of the
scale and receives #189.33 per week and Mr. Smyth is on point 2 of
the scale and receives #162.07 per week.

Until 1st April, 1981 Porters were paid a flat rate with
appropriate service pay allowances. An 11 point scale was
introduced on that date and Porters were assimilated onto that
scale according to their service e.g. a Porter with 4 years
service was placed on point 5, a Porter with 4 - 7 years service
was placed on point 6, a Porter with 8 - 11 years on point 7 and
so on. In December, 1983, a 12th point was added to the scale.
According to the terms of a Productivity Agreement made in 1978
between the Banks and I.T.G.W.U., applicable to Porters, Security
Guards and Mobile Bank Drivers, an increased emphasis was placed
on the importance of the security aspects of the work of Porters
and it was accepted as an integral part of their basic duties
without warranting extra compensation.

A paragraph regarding transferability is also included in that
Agreement. It states that "the Banks shall have the right to
transfer employees from one office to another, within cities or
towns where there is more than one branch or office."

The Agreement also includes a paragraph headed Exclusive Right to
Certain Work which states that while it is accepted that Porters,
Drivers and Security Guards are employed by the Banks to perform a
range of duties which are appropriate to those grades, the
performance of those duties is not the exclusive right of its
members and may on occasions be performed by other grades of staff
so that the Bank may secure a more economic use of staff and a
more effective performance of work.


Union's Case:

5. The Union contends that each of the claimants performs like
work as defined in section 3(a), 3(b) and 3(c) of the Act with
that performed by one or both of the named comparators and is
entitled, therefore, to the same hourly rate of basic pay as those
males. In support of this contention the Union supplied (i)
descriptions of the work performed by the claimants and the two
Porters, (ii) an analysis of the work performed by the claimants
and (iii) detailed comments concerning the Bank's submission. The
job descriptions and job analysis submitted by the Union are
attached at Appendix III.

6. The Union submitted no arguments in relation to section 3(a)
of the Act. With regard to section 3(b) of the Act, the Union
submits that, in line with previous interpretations of this
subsection by Equality Officers and by the Labour Court, the jobs
of the claimants and the comparators can reasonably be described
as similar in nature. The cases referred to by the Union in this
regard are Dublin VEC (EP13/1986, DEP1/1987), Toyota Motor
Distributors (EP17/1985, DEP1/1986), Dowdall O'Mahony (EP2/1987,
DEP6/1987), U.C.C. (EP3/1988, EP4/1988, DEP2/1989,
DEP3/1989), C.M.P. (EP2/1989).

The Union accepts that differences do occur in the work performed.
It points out, however, that in the case of Dowdall O'Mahony
(DEP6/1987) the Labour Court determined that, in deciding whether
the differences were of small importance, the relevant point which
should be considered was "whether or not these differences were of
such importance that they would normally be used as the basis for
establishing a different grade, salary scale or rate of pay,
irrespective of the sex of the workers concerned". On the basis
of this interpretation, the Union considers that the differences
in the work performed by the claimants and the comparators in the
case here concerned do not justify a difference in the rate of
pay.

7. The Union does not accept the contention of the Bank that the
jobs of the claimants and comparators are not of a similar nature
and that "there are major differences in terms of the nature of
the work and its diversity and indeed in terms of the conditions
under which it is performed". The Union argues that in Dowdall
O'Mahony v. I.T.G.W.U. (EP2/1987), the Equality Officer dealt with
that point under section 3(b) by asking the following questions:-

"(i) Are there differences between the work performed by the
women and the work performed by the men which have caused
the Company to pay each of the men a higher rate of pay,
or is the existing difference in pay due solely and
entirely to deliberate sex discrimination?


(ii) If such differences exist, are they of a magnitude which
could reasonably be expected to give rise to a difference
in pay irrespective of the sex of the workers concerned?

(iii) Has the Company overlooked without justification any
compensating factor peculiar to the women's work?"

The Union considers that these are the relevant questions to be
addressed under Section 3(b) and in response to (i) states that it
believes that the difference in pay in this case is due solely and
entirely to sex discrimination. In response to (ii) it states
that the differences are not of a magnitude which would reasonably
be expected to give rise to a difference in pay irrespective of
sex. Under (iii) it states that the Employer has never looked at
the job of the claimants in relation to that of the other
employees of the Bank, and it considers that this oversight
relates to the fact that the perception of such cleaning work
remains sex-related, and has its roots in the general perception
of a woman's role in society.


8. With regard to section 3(c) of the Act, the Union submits that
the work performed by the claimants is clearly equal in value to
that performed by the comparators. It contends that, on the basis
of its analysis of the jobs of the claimants and of the
comparators, it is satisfied that the demands of the jobs are
equal in value in terms of the factors mentioned in that
subsection. An analysis of the work performed by the claimants is
contained at Appendix III. (An analysis of the work performed by
the comparators was not submitted by the Union). The Union
disagrees with the Bank's contention that there are differences in
demands between the two jobs which would have convinced the Bank
to allocate the jobs to different grades had both jobs been
performed by males. In this regard the Union argues that the Bank
has adopted a very narrow interpretation of the section and it
reiterates its view that the demands of both jobs are equal if
interpreted on a broad basis as contained in the precedent cases
already referred to in the preceding paragraph.

9. The Union submits that, in the evaluation of the work of the
Cleaners, the Bank has totally ignored the following aspects of
the work:-

(i) The Cleaners work entirely on their own initiative. They
decide on the order of their cleaning and which cloths
etc. to use. For example, they would not clean the
canteen tables with a cloth used in the toilets. They
require interpersonal skills to get on with staff and
must be obliging and work when it suits staff. No one
supervises their work.


(ii) They voluntarily perform additional duties e.g. help to
bring up and to remove chairs used for functions in the
canteen, make tea for Bank Inspectors or staff who may
feel ill etc.

(iii) Even though they facilitated the Bank by agreeing to
start work at 7.30 a.m. in an endeavour to spend as
little time as possible in the Public Areas after the
arrival of customers, the fact remains that they do
work in the Banking Hall when customers come in and
they are security conscious; if they saw anything
unusual they would inform the Bank Officials about it
in the same way as the Porters.

(iv) The Cleaners must be trustworthy and responsible and are
entrusted with money (details supplied).

(v) Cleaning is an essential service and the Bank would be
greatly inconvenienced if it were not done properly.

(vi) The cleaning work entails a high level of physical
effort on a continuous basis. The Cleaners must lift
heavy cash boxes to clean under them, carry buckets of
water from one floor to another, bring vacuum cleaners
up and down stairs, wash and vacuum stairs etc. In
contrast, the Porters perform only occasional physical
work.

(vii) Cleaning work does require some mental effort. Cleaners
must be constantly conscious of hygiene, remember how
and where to replace items lifted from desks or removed
from rooms etc.

(viii)Like other Bank Staff, they must also dress suitably for
their work. It is also necessary for them to go to
different premises to do cleaning work in all weather
conditions.

10. The Union makes the following additional comments in regard to
the Bank's submissions:-

(i) The language used in the job descriptions and job
analysis submitted by the Bank endeavours to overvalue
the work of the Porters while it totally downgrades the
work of the Cleaners. Both jobs are unskilled, neither
job holder requires any qualifications, yet the Bank has
made a huge distinction between both jobs.


(ii) The points made by the Bank regarding the image
presented by the Porter and his high level of customer
contact is totally over stated. The tasks of the
Porters in this regard are similar to those of Porters
in other commercial enterprises. Uniforms are required
for identification purposes just as they are elsewhere.
Customers do not always ask the Porters for directions
etc. There is an enquiries' desk inside the door and
customers go there for advice. Porters are often at the
back of the Bank and customers do not see them and
occasionally there is no Porter on the floor.

(iii) On the issue of security, it is accepted that the
Porters must be alert, vigilant and security conscious
and key-holding may be required in their work. However,
it must also be acknowledged that the claimants have
access to and use the Bank's keys in the absence of
other staff members and, in line with all other Bank
staff, are expected to be alert, vigilant and security
conscious.

(iv) Transferability is not an issue in this case as it does
not and has not been applied to the Staff members
concerned.

11. In conclusion, the Union contends that the Bank has shown a
complete disregard for the work of the claimants. In this regard
the Union refers to a Research Study commissioned by the
Employment Equality Agency of workers employed in the cleaning
industry, titled "The Hidden Workers". The Union states that it
is clear that the claimants are not considered as part of the
"real" employment scene in the Bank and that, in fact, they are
part of the "invisible workforce" described in "The Hidden
Workers". Their services are completely underpaid and the
position should be rectified by the Equality Officer as it is
clear that they perform like work in terms of section 3 of the Act
with the Porters.

The Bank's Case:

12. The Bank argues that discrimination on a sex basis does not
exist within its staffing structure. It stresses that it is an
Equal Opportunities Employer and follows the code of practice set
out in its booklet entitled "Employment Equality in A.I.B." (copy
supplied). In relation to the claim here concerned, the Bank
argues that it is clear that the Cleaners are not performing like
work with that performed by the Porters and that there is no
justification whatsoever for payment of the same rate of
remuneration to them. It submits that it is clear from the
detailed job descriptions and job analysis of both jobs, which it


has prepared and which are contained at Appendix IV, that the jobs
are not equal and that the claim fails under all three sub-
sections of section 3 of the Act. The Bank's arguments in this
regard are set out in more detail in the following paragraphs.

13. Sub-section 3(a): The Bank argues that it is clear from the
job content of both categories of employees (details at Appendix
IV) that they do not perform the same work under the same or
similar conditions and that each is not in every respect
interchangeable with the other in relation to the work.

14. Sub-section 3(b): The Bank points out that it is clear from
an examination of the work of both groups (as contained at
Appendix IV) that the work is not of a similar nature. There are
major differences in terms of the nature of the work and its
diversity and in terms of the conditions under which it is
performed.

15. Sub-section 3(c): The Bank contends that the work performed
by the Cleaners is not equal in value to that performed by the
Porters in terms of the demands it makes in relation to such
matters as skill, physical or mental effort, responsibility and
working conditions. A detailed comparison of the work under these
headings is contained at Appendix V. The comparison of the jobs
shows clearly that the work performed by the Porters is clearly
more demanding under each of the headings than that performed by
the Cleaners.

16. In further support of its contention that the difference in
pay between the Cleaners and the Porters is justified, the Bank
submits the following specific aspects of the Porters' work and
contrasts them with the Cleaners' work:-

(i) Porters are generally the first staff the public meets
on entering the Banking Hall and the Bank supplies them
with a uniform in order to promote a good corporate
image.

Cleaners are not supplied with a uniform. Promoting the
Bank's image is not an element of their employment.

(ii) Porters have a high level of customer contact and
provide a direct customer service in an industry where
quality of service is of the utmost importance. Such is
the importance of this role that the Bank is currently
developing a Customer Service Programme specifically
designed for Porters. This will give Porters an
opportunity to familiarise themselves with the Bank's
Marketing Action Programme and allow them to further
improve the quality of customer service offered to the
Bank's customers each day.


Cleaners do not have customer contact as part of their
duties. The cleaning of the public offices is completed
before the Branch opens its doors to the public.

(iii) Flexibility is an important aspect of Porters' work
because of their wide range of duties. Porters are
expected to undertake the duties as outlined in the job
descriptions but the diversity of their job descriptions
is such that they can be and are asked to undertake
additional and/or different duties, depending on the
circumstances.

Cleaners have a specific workload which does not vary.

(iv) Security is another important element of the Porters'
work. It is recognised as an integral part of their
basic duties. Porters are expected to be vigilant with
regard to those members of the general public who could
pose a security threat to staff or customers. It is a
common occurrence in the Upper O'Connell St. Branch for
Porters to alert management to the presence of potential
"pick-pockets" or those intent on one form of crime or
another. The performance of this role calls for
initiative, tactfulness and discretion.

The element of security in the Porters' role extends
beyond the main Banking Hall (details supplied).

The work of the Cleaners does not involve a security
element.

(v) Transferability is a condition of employment for
Porters. The Bank has the right to transfer them from
one office to another within cities and towns where
there is more than one office and such transfers have
taken place from time to time.

Cleaners do not have transferability as a condition of
employment.

(vi) Porters are entrusted with the delivery of mail to local
customers and also with the handling and delivery of
Bank documents (these could be, for example, special
presentation items of high value). They are responsible
for the safe delivery of same to other Branches of
A.I.B. and to other Banks in the City. Failure to
perform this work satisfactorily would have serious
consequences.

Cleaners do not have to leave their place of work to
carry out their duties.


17. The Bank contends that it is satisfied that both jobs are
graded correctly and, furthermore, it is also satisfied that the
differences in demands between the two jobs are such that they
would have been allocated to different grades even if both had
been performed by men. To support this contention the Bank points
out that the grade of Security Guard in the Bank has traditionally
been staffed by males just as the grade of Porter has
traditionally been staffed by males. The work of the Security
Guard is composed entirely of security work just as that of the
Cleaners is composed entirely of cleaning duties, but, because of
the nature of the work, the rates of remuneration applying to the
Grades of Security Guard and Porter are different. In the same
way, because of the nature of the work, the rates of remuneration
applying to the grades of Porter and Cleaner are different.

18. The Bank makes the following comments in respect of (i) the
Union's analysis of the work of the claimants and (ii) the Union's
comments on the Bank's submission:-

(i) The Bank contends that its descriptions of the work of the
Cleaners and the Porters are accurate but that the Union
overstates the demands of the work of the claimants under all
the headings as follows:-

Skill: The dexterity, knowledge and initiative required for
the job requires the minimum of learning and training.

Physical Effort: The duties outlined do not involve
substantial physical effort.

Mental Effort: (a) The claimants' work plan is long
established and was designed to cause least inconvenience to
members of the Bank's staff. The mental effort now required
for this plan is negligible. (b) As the claimants have worked
in the Bank for 7 and 8 years respectively, the
familiarisation of the lay-out requires minimal mental effort.
(c) The assessment of cleaning requirements is not a
particularly onerous task.

Responsibility: The claimants are not keyholders and merely
open the door to the 1st Floor area and the door to the
premises next door to gain access to the areas for cleaning
purposes.

The supply of towels and toilet rolls to the toilets is a
routine task and is not demanding in terms of responsibility.


Working Conditions: The claimants' job may demand that they
are on their feet all of their working day, but so too are
their comparators who work a much longer day. The cleaning of
toilets, either ladies or gents, is a routine task and is not
particularly onerous and the claimants are provided with
cleaning aids to assist in the task.

(ii) The Bank totally rejects the Union's assertions concerning
section 3(b) of the Act, that (i) the difference in pay is
due to sex discrimination; (ii) that the differences
between the jobs do not warrant a different rate of pay;
and (iii) that the Bank's perceptions of cleaning work
remains sex-related (paragraph 7 refers). It contends that
these points have been fully clarified in its submission.

CONCLUSIONS OF THE EQUALITY OFFICER:

19. The Union claims that the work performed by each claimant is
like work in terms of section 3(a), 3(b) and 3(c) of the Act with
that performed by each of the two Porters. To assess this claim I
examined the work performed by each claimant and by each
comparator. Full details of the jobs in question, as submitted by
the Union and by the Bank, are contained at Appendices III and IV
respectively. A summary, which I prepared, of the work performed
by the claimants and by the comparators is set out in paragraphs
20 and 21 hereunder.

Work performed by each Cleaner.

20. The premises which house the Bank consist of a basement area,
ground floor, first floor, premises next door and bank link
machine room.

The two claimants clean all these areas. Their cleaning duties
include cleaning the stairs, vacuuming the large public areas,
offices and areas behind the counters, polishing the counters,
desks, shelving, floor ledges, filing cabinets, mirrors, pictures
etc., washing canteen floor, canteen tables, chairs, cups, pots,
cooker, fridge and tea towels, washing floors in toilets (ladies
and gents) wash-hand basins, tiles, toilet bowls, urinals, etc.
and performing ancillary duties including stocking of toilets,
changing towels, maintaining cleaning materials, emptying
dust-bins, depositing bags of rubbish at collection points,
dusting V.D.U.s, cleaning the back of the Bank Link Machine etc.

Each Cleaner has a vacuum cleaner and other cleaning aides and
these have to be carried from place to place as necessary.
Occasionally the claimants also carry chairs to and from the
canteen following a function and very occasionally make tea for
staff and visitors.


Work performed by each Porter.

21. The duties which are performed by both Porters are as
follows:-

Attending the Front Door: this involves opening and closing the
door in order to admit Bank staff, Postal deliveries and any other
callers to the bank prior to the official opening of the Bank in
the mornings, during lunch time and following closing hours in the
evenings.
Removing and distributing items from strong room: Items
consisting of cash-boxes, bags of coins, books etc. are taken from
the strong room in trolleys twice daily and distributed to the
respective Cashiers etc. The items concerned are also returned to
the strong room twice daily. Bags of coins are also taken from
the strong room and distributed as required to the cash points.
Post is also distributed by the Porters.
Floor Duty: During opening hours the Porters take up duty in the
Public Areas where they watch out for "pick-pockets", troublesome
customers, etc. They go on delivery duty as required, in turn.
Generally one goes in the morning and one goes in the afternoon.
Delivery duties: When cheques need clearance in other Banks, the
Porters take them for necessary action (special presentations);
they also deliver documents etc. to Business Premises, Post Office
etc. In the afternoon it is vital that they are back before
closing time.
Securicor Deliveries: The Porters assist at cash deliveries which
are made several times per week. When coins are delivered they
heap the bags of coins onto a trolley and send them down the lift
to the strong room where they sort them on shelves.
Other Duties: Every morning the Porter with the shortest service
cleans the brasses outside the Bank and goes to the Post Office
while the more senior of the Porters collects tea, coffee and milk
for use in the canteen, looks after the heating and every evening
after the departure of staff from the Bank checks the entire
building before setting the alarm and locking the premises. The
"junior" Porter takes over these duties during his colleague's
absence while his own duties are performed by a replacement
Porter. They both change dates on calendars, renew stocks of
literature for use by the public, put out bags of rubbish for
collection, collect and deliver bags of post, move furniture and
do any work required of them.

22. I first considered the work performed by each of the claimants
and by the two comparators in terms of section 3(a) of the Act
which states that two persons shall be regarded as employed on
like work -
"where both perform the same work under the same or similar
conditions, or where each is in every respect interchangeable with
the other in relation to the work,"


As stated in the previous paragraphs the claimants are engaged
solely on cleaning and ancillary duties while the Porters' main
duties involve attending at the front door, removing items from
the strong room and distributing them to different sections, floor
duty and outside deliveries. It is clear that the claimants and
comparators do not perform the same work as each other nor are the
jobs interchangeable. Therefore, the work concerned is not like
work within the meaning of section 3(a) of the Act.

23. I next considered the work performed by each of the claimants
and each of the Porters in terms of section 3(b) of the Act which
states that two persons shall be regarded as employed on like
work -
"where the work performed by one is of a similar nature to that
performed by the other and any differences between the work
performed or the conditions under which it is performed by
each occur only infrequently or are of small importance in
relation to the work as a whole."

In the context of this section of the Act I considered firstly,
whether or not the work performed by the claimants is similar in
nature to the work performed by the comparators. Having done so I
am satisfied, for the reasons set out in the preceding paragraph
in relation to section 3(a), that the work performed by the
claimants in the case here concerned is not similar in nature to
that performed by the comparators. In view of my finding that the
claimants do not perform work of a similar nature to that
performed by the comparators, I am satisfied that the claimants do
not perform like work in terms of section 3(b) of the Act to that
performed by either of the comparators.

24. As already stated, the Union also contends that the claimants
perform like work in terms of section 3(c) of the Act with that
performed by each of the comparators. Section 3(c) of the Act
states that two persons shall be regarded as employed on like
work -

"where the work performed by one is equal in value to that
performed by the other in terms of the demands it makes in
relation to such matters as skill, physical or mental effort,
responsibility and working conditions."

Having analysed and compared the work performed by each claimant
with each comparator in terms of the demand factors mentioned in
section 3(c) of the Act, I am satisfied that the work performed by
each of the claimants is not like work in terms of section 3(c)
with that performed by either of the comparators. More
specifically, I found that the work performed by each Porter is
more demanding than that performed by each of the claimants in


terms of skill, mental effort and responsibility, is equally
demanding in terms of working conditions and is less demanding
physically than that performed by the claimants. My reasons for
so finding are set out in the following paragraphs.

SKILL

Cleaners' Work

25. No particular education, training or experience is required
for the Cleaners' job. On-the-job training of a day or two is
required to learn the operation of the vacuum cleaner, the lay out
of the Bank, the division of the premises for cleaning purposes by
each Cleaner, the methods of cleaning of the different areas viz.
stairs, hallways, corridors, canteen, counters (inside and
outside), the contents and interiors of the different offices, the
toilets, etc., the arrival of the customers and the requirements
of the different sections and staff members. Although each
Cleaner requires a relatively low level of skill in her daily work
she nevertheless requires (i) dexterity and some knowledge
concerning the operation of the vacuum cleaner and how to fill the
towel dispensers in the cloakrooms; (ii) some initiative and
judgement concerning the most effective and hygienic methods of
cleaning the different areas and the best times for the cleaning
of these areas.

Porters' Work

26. No particular education, training or experience is required
for the Porters' work. However, the performance of his work does
require the ability to read. He must be able to read the names on
the envelopes which have to be delivered to different Banks,
Businesses etc. and to sort the post. His work also requires (i)
some initiative and judgement when dealing with customers'
queries, suspicious customers, "pick-pockets", when reporting
faults etc. (ii) knowledge of the Bank's Departments in order to
direct customers when necessary, knowledge of the locality in
order to deliver letters quickly and safely, of the heating
system, the different cash points for the distribution and
collection of cash boxes etc.

Having carefully considered all aspects of the skill required by
the Cleaners and the Porters, I am satisfied that the level of
skill required of the Porters is greater than that required of the
Cleaners.


PHYSICAL EFFORT

Cleaners' Work

27. In the course of their work each of the Cleaners lifts and
carries the vacuum cleaner, buckets of water and other cleaning
equipment from area to area and in some instances up and down the
stairs. The actual cleaning work is also very demanding
physically and is done on a continuous basis viz.

- polishing counters, mirrors, brass rails, filing cabinets,
tables, chairs etc.
- washing floors, stairs, tiles to shoulder height, radiators,
window sills, ledges, bins, canteen tables, chairs, wash-hand
basins, toilet bowls, urinals, etc.
- dusting desks and shelves and lifting cash boxes and cash
trays, files, books etc. to dust under them,
- moving furniture i.e. chairs and tables in the canteen when
washing the floor and chairs occasionally when bringing them
to the canteen for functions.
- emptying dust bins, carrying the rubbish bags to collection
points and the insertion of towels into dispensing machines on
the walls is also demanding physically. The Cleaners must
remain on their feet during their entire working period and
must go up and down the stairs several times in the course of
their work.

Porters' Work

28. The work of the Porters also involves physical effort but only
on an intermittent basis. This work includes moving loaded
trolleys from the safe to the lift and from the lift to a
distribution point and distributing the cash boxes, books etc. to
the different cash points as required. Taking delivery of cash
and coin and transferring them to the strong room. Collecting
bags of coins for the Cashiers as required and sorting and
stacking of bags of coins on shelves in the strong room. The
Porters' other duties require a low level of physical effort. The
Porters must remain on their feet during their working period but
when going on messages can either take public transport or walk or
if the message is very urgent can take a taxi.

Having compared the constant physical effort required of the
Cleaners with the high but short term physical effort required of
the Porters I am satisfied that the effort required of the Porters
is not as great as the effort exerted by the Cleaners.


MENTAL EFFORT

Cleaners' Work

29. In performing their cleaning work, the Cleaners must be
continually conscious of the time in order to keep within a set
time pattern during which particular jobs must be completed. This
is required in order to avoid inconveniencing banking staff and
the Public. When cleaning desks etc., they must take care to
return all items moved for cleaning purposes to their proper place
and must not mislay or damage anything on the desk. When moving
coin holders full of coins at Cash Points they must take care to
avoid disturbing or upsetting them. They must remember which
cloths to use in the different areas for hygienic purposes and
must check their cleaning requirements occasionally to avoid
running short during the course of their work.

Porters' Work

30. Porters must also be conscious of time during the working day
e.g. they have to open the Bank to customers at specific times and
distribute cash boxes etc. to the Cash Points at particular times.
They also must be mentally alert for possible "pick-pockets",
robbery or snatch situations and when checking the premises prior
to locking them and when setting the alarms.

Having considered all aspects of the demands made under this
heading on the Cleaners and the Porters I am satisfied that the
demands required under mental effort of the Porters are higher
than those required of the Cleaners.

RESPONSIBILITY

Cleaners' Work

31. The Cleaners are responsible for (i) the keys which they
collect to a total of 8 internal doors and the front door of the
premises next door. (ii) the cleanliness of the area allocated
to each of them; (iii) ensuring that the toilets are stocked and
that clean towels are in place and operating correctly and that
clean tea towels are available; (iv) ensuring that the supply of washing materials is sufficient for their work; (v) being fully
responsible and trustworthy in so far as the property of staff is
concerned; (vi) As no one supervises their work they are fully
responsible for performing it correctly and within the time span
which they have set themselves in order to perform the work with
the least inconvenience to others.


Porters' Work

32. The Porters are responsible for (i) the keys to the Bank
premises; (ii) distributing cash boxes, coins, books, files etc.
to Cash points prior to opening of the Bank and after lunch and
returning them to the strong room during lunch and at night;
(iii) assisting Cashiers to sort bags of coins on shelves in the
safe; (iv) maintaining constant vigilance while on duty in the
hall and the public areas and when deliveries of money are made by
Securicor; (v) taking care of documents when delivering them to
customers, to other Banks for clearance etc. (vi) ensuring that
deliveries and collections are made as quickly as possible; (vii)
distributing internal post correctly; (viii) checking heating
system; (ix) performing a complete check of the premises before
locking them for the night and ensuring that the alarm is
correctly set (one Porter performs this duty on a regular basis
the other performs it during his absence).

Taking all aspects of the work into account I am satisfied that
overall the work performed by each Porter is more demanding in
terms of responsibility than that performed by the Cleaners.

WORKING CONDITIONS

Cleaners' Work

33. The working conditions of the Cleaners vary depending on which
area they are cleaning e.g. cleaning the basement area and the
toilets is less pleasant than cleaning the office areas. The work
in the toilets which involves washing the toilet bowls, urinals
and the floors is particularly unpleasant. There is a slight
hazard factor connected with the work as they are on duty during
most of the Bank's morning opening time and the possibility of a
hold up etc. cannot be entirely discounted. They are exposed to
all weather conditions when going to the building next door.

Porters' Work

34. Apart from a short time spent in the strong room, the Porter
performs his indoor work in an office environment. For a few
hours each day each Porter has to go outdoors in all weather
conditions to different Banks, Businesses, P.O. etc. There is a
hazard factor connected with his work as the possibility of a
hold-up etc. cannot be totally discounted.

Having considered all aspects of both jobs I am satisfied that the
demands made on the Cleaners and the Porters under this heading
are equal.


35. In summary, I found that the work performed by the Cleaners is
more demanding than that of the Porters in terms of Physical
Effort, is equally demanding in terms of Working Conditions but is
less demanding in terms of Skill, Mental Effort and
Responsibility. Having considered all aspects of the work
performed by the Cleaners and the Porters I am satisfied that the
higher demands on the Porters under the headings of Skill, Mental
Effort and Responsibility outweigh the higher demands on the
Cleaners in terms of Physical Effort. I am satisfied, therefore,
that the overall demands on the Porters are greater than those on
the Cleaners. I am also satisfied that the level of difference in
demands between their work and that of the Porters is such that
the work performed by the Cleaners could not be regarded as being
equal in value in terms of section 3(c) of the Act with that
performed by the Porters.

RECOMMENDATION:

36. In view of my conclusions in the preceding paragraphs I am
satisfied that the two named Cleaners do not perform like work
with that performed by either of the two named Porters and are not
entitled, therefore, to the same basic hourly rate of pay as
either of them in respect of their work.


________________
Eveta Brezina
Equality Officer
23rd November, 1989


APPENDIX I


Details of the Equality Officer's Investigation


A dispute on behalf of 2 Cleaners employed in the A.I.B. Upper
O'Connell Street, who were seeking the same hourly basic rate of
pay as 2 named Porters was referred by the Union to the Equality
Officer on 28th April, 1989.


A preliminary hearing was arranged for 14th June, 1989, the
earliest date suitable for both parties.


At the hearing, a work inspection was arranged for 17th August,
1989, and both parties agreed to submit job descriptions and
submissions by 28th July, 1989.


The job descriptions and submissions were received from the A.I.B.
on 28th July, 1989 and from the Union on 4th August, 1989. Copies
of all documents were exchanged between the parties on 4th August,
1989.


Representatives of the Bank and the Union accompanied the Equality
Officer during the inspection of the work performed by the
claimants and the comparators on 17th August, 1989.


A joint hearing was held on 31st August, 1989. Following the
hearing the Union submitted a job analysis of the work performed
by the Cleaners and on 5th September, 1989 it submitted comments
on the Bank's submission and job descriptions. Both documents
were copied to the Bank for comment on 1st and 6th September,
1989, respectively.


The comments from the Bank concerning the work analysis of the
Cleaners were received on 12th September, 1989 and its reply to
the Union's comments was received on 21st September, 1989.


Both replies were copied to the Union on 21st September, 1989, and
no further comments were received from the Union.


APPENDIX II

Porters Effective Date:
Wage Scales 1.3.1989

w.e. 1.3.1989 w.e. 1.3.1989

1. #155.38 #159.69
2. #157.72 #162.07
3. #160.05 #164.45
4. #162.38 #166.83
5. #164.93 #169.43
6. #167.43 #171.98
7. #169.98 #174.58
8. #172.48 #177.13
9. #175.04 #179.74
10. #177.54 #182.29
11. #181.38 #186.21
12. #184.44 #189.33

PART-TIME PORTERS

Porters employed on a part-time basis should be paid according to
Point 1 of the current Porters Scale.

APPENDIX III

(Page 1)

JOB DESCRIPTION AS SUBMITTED BY THE UNION
IN RESPECT OF CLEANERS: Brigid Dunne and Christine Foran

The claimants, who are employed as Cleaners work from 7.30 a.m. -
12.30 p.m. Monday to Thursday and from 7.30 a.m. to 11.30 a.m. on
Fridays, giving a 24 hour week.

The two positions are separate but interchangeable as the
claimants plan their own work schedule to ensure that the overall
objectives of the position are met.

The basic operation comprises washing and cleaning delph and staff
canteen area, hoovering carpeted areas, washing uncarpeted areas
with bucket and mop and dusting and polishing of furniture and
woodwork. They are responsible for cleaning areas within the Bank
where customers are active including the Manager's office and also
for working in secure areas while staff are working.

In addition to the actual Bank building they also clean an
adjacent building which is owned by the Bank but in which some
space is rented out to private companies. As the buildings
comprise 3 floors the operation is quite physical with cleaning
equipment having to be manually handled from location to location.

Cleaning materials are ordered from the Head Porter when required
and are automatically provided.


The claimants can be asked to do additional duties for example, to
make tea for visitors (Bank Inspectors).

APPENDIX III

(Page 2)


JOB DESCRIPTION AS SUBMITTED BY THE UNION
IN RESPECT OF PORTERS

There are 2 grades of Porter employed in this Branch of the Bank,
a Porter and a senior Porter.

PORTER

The main duties of the Porter would be:

(a) to hand deliver mail from the Branch to various offices around
the city.

(b) to clean the brasswork etc. on the outside of the Bank.

(c) general portering duties, e.g. moving furniture if necessary,
or crowd control during busy periods in the banking hall.

SENIOR PORTER

In addition to the above duties the Senior Porter holds keys to
the Bank and is liable to be called in in the event of the alarm
going off outside working hours.

The Senior Porter would also tend to direct the Porter.

APPENDIX III

(Page 3)

ANALYSIS OF THE CLEANERS' WORK AS SUBMITTED BY THE UNION

Skills

1. Dexterity and knowledge concerning the operation of a vacuum
cleaner.

2. Knowledge of filling the towel machines in the cloakroom
areas.

3. Initiative concerning the most effective method of cleaning.

Physical Effort

1. The claimants have to lift and carry vacuum cleaners and other
cleaning equipment up and down the stairs.


2. Lifting files and other office equipment from desks in order
to clean them.

3. Emptying of bins, the movement of rubbish bags.

The following duties are periodically carried out, but none the
less they involve substantial physical effort. Washing wall
tiles, radiators, window sills, drip-trays and cleaning and
defrosting the fridge and cleaning the cooker and the washing of
bins. Cleaning work is very demanding physically when it is done
on a continuous basis.

Mental Effort

1. The claimants must plan their work in order to cause the least
inconvenience to other members of the banking staff.

2. They must be totally familiar with the lay-out of 63/64
O'Connell Street.

3. They must constantly access their cleaning requirements and
other supplies needed to carry out their duties.

Responsibilities

They must collect keys and open a total of 8 internal doors. It
was also part of their duties to open the external door of the
adjoining premises. They must ensure that the toilets are
properly supplied with towels and toilet rolls and ultimately they
are responsible for the cleanliness of their areas.

Working Conditions

The claimants are on their feet all day, they are expected to
clean the urinals in the gents toilets, by hand.

APPENDIX IV

(Page 1)

BRIEF SUMMARY OF DUTIES PERFORMED BY THE PORTERS
AS SUBMITTED BY THE BANK

Opening/closing of premises, setting office alarm system,
maintaining security presence, having high profile with customers
in Banking Hall, taking items of high value to other A.I.B.
Branches and other Banks, carrying cash/coin, carrying files from
Banks' safes, local mail deliveries, other Bank errands and
general portering.

Detailed tasks involved in the job
- Opening of premises to admit staff before the office is open
to general public.

- Clean brass outside premises.


- Wash down lower outside wall of premises.

- Open/close doors to public at beginning/end of banking hours.

- Change calendars, date brands and maintain endorsing pads.

- Open Book Room (Safe) and distribute books, filing baskets,
files to the various individuals/departments.

- Assist in bringing up Cash/Coin from Safe in lower ground
floor.

- Maintain presence in main Banking Hall all the time doors are
open to the public with particular emphasis on a customer
service role in being on hand to direct customers to
appropriate service areas.

- Be vigilant of any potential security risk to staff and
customers alike and respond accordingly.

- Ensure that there is an adequate supply of promotional
brochures and stationery items available to customers in the
main Banking Hall.

- Deliver mail and 'value' items to local businesses or to other
branches of A.I.B. or to other Banks.

- Attend and assist with the cash delivery made by a security
firm, twice weekly.

- Assist the Bank's cashiers in taking a weekly delivery of coin
from the Bank's Coin Centre and transferring it to a Strong
Room in the basement of the Bank. Assist in sorting this coin
into various denominations.

- Supply cashiers as required with coin from Strong Room on a
daily basis.

APPENDIX IV

(Page 2)

- Assist staff to lock away cash and coin.

- Collect and lock away all books, filing baskets and files.
(This job is more onerous in the evening as these items are
widely distributed throughout the office during the course of
the day's work).

- Put out garbage twice weekly for collection by Corporation
officials.


Periodic

- Assist staff in filing and storage of documents.

- In winter months, monitor heating system and advise management
when oil requisition is necessary.

- Replace light bulbs, fluorescent tubes as required.

- Ensure adequate supply of toiletries and replenish as
necessary.

- Ensure adequate supply of tea/coffee and milk available for
staff.

Educational standards, qualifications and/or experience required
for the job:-

- None

List any skills and abilities required for this job:

Good interpersonal skills.

Alert to needs of customers, management and staff and react
accordingly.

Knowledge of Bank's customers and services.

Diplomacy and discretion when dealing with customers.

Ability to work on own initiative.

Ability to relate well with staff.

Ability to identify potential pick-pockets/criminals from
customers and respond accordingly.

Good knowledge of local environment.

APPENDIX IV

(Page 3)

Details of the responsibility elements of job:

Relates in the main to:-
(i) Security of premises.

(ii) Maintaining security presence in the main Banking hall.

(iii)Maintaining good customer relations profile.

(iv)Handling of cash, coin, Bank documents (special value
presentations to other Banks).


(v) Mail deliveries including high value items.

Working Conditions:

On their feet most of the day.

Have to attend to deliveries in all weathers.

Effort Required:

Mental effort in ensuring timely opening/closing of premises,
attending customer queries on Banking floor, mindful to replenish
stationery items, toiletries, etc. and aware of possible
pickpockets, robbery or snatch situations.

Physical effort involved in distributing books, filing baskets and
files from strong room in basement to offices on first and second
floors. Also, considerable effort required in taking delivery of
cash and coin from Coin Centre and transferring same to strong
room. Physical effort also entailed in meeting needs of Cashiers
for additional cash supply throughout the day.

APPENDIX IV

(Page 4)


TASKS INVOLVED IN THE JOB OF THE CLEANERS
AS SUBMITTED BY THE BANK

Dusting
Polishing
Washing Dishes
Tidying Canteen area
Wash lower ground floor
Wash toilets
Clean stairway of Bank Chamber
Vacuum

Educational Standards, qualifications and/or experience required
for the job:-

None

List any Skills and Abilities required for this job:

Ability to clean to an acceptable standard.

Detail the Responsibility Elements of Job:

No special responsibilities other than they are expected to be
responsible for the tasks they undertake.


Working Conditions:

On their feet most of the day. Vacuum Cleaners cited on each of
two floors for ease of work.

Effort Required:

Clean to an acceptable standard.

APPENDIX V
(Page 1)

COMPARISON, SUBMITTED BY THE BANK, OF PORTERS/CLEANERS
SKILL, PHYSICAL EFFORT, MENTAL EFFORT, RESPONSIBILITY AND WORKING
CONDITIONS

PORTERS CLEANERS

Skill Skill

Requires a detailed knowledge of the Cleaners work involves
locality to facilitate hand delivery dusting, polishing of
mail. washing and cleaning
which entails a low level
of skill.

Needs good interpersonal skills
and ability to identify and deal
effectively with customers.

Requires knowledge of Bank's
Services and ability to use own
initiative in dealing with varied
situations i.e. - Direct customers
to service areas.

Ability to identify potential
hazard situations/undesirables
and respond appropriate to same.

Requires diplomacy, tact and
discretion in the security role.

Physical Effort Physical Effort

Distributing books/files/filing Cleaners work involves
baskets throughout the office vacuuming washing and
from the basement strong-rooms. polishing - assisted by
cleaning aids such as
Considerable effort required in vacuum cleaners (one on
taking cash deliveries from Coin each floor so that they
Centre/Security Firm. are not required to carry
upstairs).
Supplies cashiers with coin from
strong room as required.


Mental Effort Mental Effort

Alertness and vigilance is required Cleaning work requires a
to identify potential pickpockets low level of mental and
snatch situations. effort. The nature of
the work is repetitive.
Mental effort is required to
concentrate while on duty in Public
Banking Hall and be alert to
Customers' needs.

Responsibility Responsibility

Security of Premises No special
responsibilities other
than to be responsible
for the cleaning tasks
they undertake.
Maintain security presence in
Banking hall.

Portray good image.

Maintain high profile in main
Banking hall - assisting customers.

Must have sufficient knowledge of
Bank's services to direct
customers to the appropriate service
point.

Delivery of Important/valuable
documents.

Assisting cashiers to sort coin into
various denominations.

Working Conditions Working Conditions

On their feet most of their day. On their feet most of
their day.
Deliveries to be made in all
weathers, year round. They are not subject to
bad weather since they
are not required to leave
the premises to carry out
duties.


APPENDIX 2

A L L I E D I R I S H B A N K S P L C


LABOUR COURT SUBMISSION


Date and Time of Hearing: 10.00 a.m., Thursday, 26th April,
1990.

Venue: Tom Johnson House,
Haddington Road,
Dublin 4.

Reference: Appeal against Equality Officer's
Recommendation No. E.P.8/1989.

Parties to Dispute: Allied Irish Banks Plc. & Two
Female Cleaners represented by
S.I.P.T.U.

Employer's Spokesperson: Eamonn Ryan,
Manager,
Staff Relations.


Allied Irish Banks plc.,
Bankcentre,
Ballsbridge,
Dublin 4.


BACKGROUND:

By letter of April, 1989, the Union initiated an investigation by
an Equality Officer, under the terms of the Anti-Discrimination
(Pay) Act, 1974, of a dispute concerning claims by two females
employed as cleaners for equal pay with two male comparators
employed as Porters.

The claimants and their comparators are employed by AIB Bank in
63/64 O'Connell Street, Dublin. The claimants are employed on a
permanent basis for 24 hours per week. The Porters were employed
on a permanent basis for 40 hours per week at the time this claim
was submitted but subsequently this was reduced to 39 hours per
week, reflecting the terms of the Programme for National Recovery.

SUMMARY OF CLAIM AND BANK'S RESPONSE:

The Union claimed that the work performed by each claimant was
like work in terms of Sections 3(a), 3(b), and 3(c) of the Act,
when compared to the work performed by the two porters. The Bank
clearly demonstrated in their written submission to the Equality
Officer on 27th July, 1989, why that claim should fail. The
Equality Officer, based on the evidence before her and on the
facts established during her work inspection, fully endorsed the
Bank's view in her recommendation on 27th November, 1989, when she
concluded that the two named Cleaners did not perform like work
with that performed by either of the two Porters and were not
therefore entitled to the same basic hourly rate of pay as either
of the Porters.

UNION'S APPEAL:

The Union claim in their appeal against the Equality Officer's
recommendation that she erred in law and in fact in deciding
against the claimants under Section 3(b) and Section 3(c) of the
Act. The 1974 Act places the onus of proof on the appellants in
any appeal to the Labour Court.

BANK'S CASE:

The Bank submitted detailed arguments against the Union's claim to
the Equality Officer in the course of her investigation (see
Appendix A). Specific points in support of the rejection of the
Cleaners' Claim are detailed on pages 3 and 4 of the appendix.

BANK'S RESPONSE TO THE APPEAL:

1. Section 3(b)

In the context of Section 3(b) of the Act, it is clear to
this Bank that, from an examination of the work of both
groups, the work of the claimants is not of a similar
nature to that of the comparators.


The Equality Officer found, on the factual evidence
submitted to her and on her own work investigation that
the cleaners were engaged solely on cleaning and ancillary
duties and in her view did not perform work of a similar
nature to that of the Porters.

To further substantiate the Equality Officer's findings we
would refer the Court to Justice Carroll's Judgement in
the ACOT (Teagasc) Case where he emphasised the importance
of factual evidence in reaching a decision under Section
3(b). The work of the cleaners is, on the facts of this
case,

- not similar in nature to the work of the porters,
taking the ordinary and natural meaning of the
words; and

- shows significant differences which occur frequently
and are of importance in relation to the work as a
whole.

Furthermore, European Court Case Law in "Defrenne V
Sabena" and Rummler V Date Druck G.M.B.H." also stresses
the need for objective grounds for findings of equality of
work and supports the judgement of Justice Carroll in the
ACOT (Teagasc) case.

It is our contention that the Equality Officer therefore
did not err in law or in fact (based on the evidence) in
finding that the work of the Cleaners was not like work
with that of the Porters within the meaning of Section
3(b) of the Act.

2. Section 3(c)

In response to the Union's claim that the work performed
by the claimants was equal in value to that performed by
the comparators, the Bank undertook an analysis of the
demands made on both jobs in relation to skill, physical
or mental effort, responsibility and working conditions.
A comparison of the findings between the two categories is
outlined in Appendix A, pages 9 and 10.
The Bank contends that whilst the Equality Officer held
that, in terms of physical effort, the work performed by
the Cleaners was more demanding than the Porters',
cognizance must be taken of the Porters' longer working
day and the resultant physical demands made on them.

The Equality Officer found, having considered all the
aspects of both jobs on the factual evidence before her
and on her own work investigation, overall, the demands on
the Porters were greater than those on the Cleaners.


It is our contention that the Equality Officer did not err
in law or in fact in finding that the work of the cleaners
was not equal in value to the work of the Porters within
the meaning of Section 3(c) of the Act.

EQUALITY OFFICER'S RECOMMENDATION

The Equality Officer's recommendation was issued in accordance
with the provisions of Sections 3(a), 3(b) and 3(c) of the
Act.

She was satisfied that the two named Cleaners did not perform
like work with that performed by either of the two named
Porters and were not entitled, therefore, to the same basic
hourly rate of pay as either Porter.

SUMMARY

The Bank concludes that the Union's Claim on behalf of the two
Cleaners for equal pay with the two Porters is not sustainable
and there is no evidence that the Equality Officer erred in
law and in fact.

We respectfully ask the Court to find that there is no work of
a similar nature under Section 3(b) and no work equal in value
under Section 3(c) of the Anti-Discrimination (Pay) Act, 1974,
and to reject the Union's Appeal.


APPENDIX 3

S. I. P. T. U.

ALLIED IRISH BANK & 2 FEMALE CLEANERS
(EP 5/1989)

SUBMISSION BY S. I. P. T. U.

ON BEHALF OF BOTH CLAIMANTS

TO THE LABOUR COURT


CHAIRPERSON, MEMBERS OF THE COURT

We have in our grounds of appeal limited the issues before this
Court to two specific points - that the Equality Officer has erred
in law and in fact in how she has interpreted like work under
Sections 3(b) & (c).

We have no problems in relation to the investigation itself - it
was thorough and competent and it treated both parties fairly.

However, we believe the Equality Officer's interpretation of what
she viewed in her work inspection is seriously flawed, and it
flows directly from the traditional undervaluing of work women
perform within the home. Women are expected by society to provide
a range of duties free-of-charge in the home; cooking, cleaning,
nursing, etc., and they are traditionally the jobs outside the
home which are given the lowest levels of pay and social status.

We believe the Court must bear this in mind as they look at the
work performed by the claimants as against that performed by the
male comparators. The males in this claim are uniformed porters
who provide a service to the bank and who are easily identifiable
and have a traditional role in the bank; messenger, courier, a
limited security role, some physical exertion in lifting, and some
cleaning duties.

The claimants, on the other hand, provide the bank with a cleaning
service - each covering their separate area of the premises, and
without supervision, attaining and maintaining a standard of
cleanliness which the bank acknowledges is totally to their
satisfaction. The service provided by the cleaners is largely
invisible, since it is provided at hours outside the normal
opening hours of the bank and without, so far as is possible,
interference with other bank staff, in order to discommode them as
little as possible.

HOURS OF WORK:

We would make the point that the cleaners start work at 7.30 a.m.
and finish at 12.30 p.m. on each day bar Friday when they finish
at 11.30 a.m. = 24 hours per week.


The porters commence work at 8.00 a.m. and finish at 5.00 p.m. on
each day bar Friday when they finish at 4.00 p.m. = 39 hours.

The cleaners have access to both bank buildings and move freely
around as required for their duties, using keys for access and
locking doors behind them. They are first into the building and
give access to other staff members, as they arrive. They must,
therefore, be credited with responsibility in using the keys,
locking and unlocking doors and ensuring access, while they are
there, is not availed of by outside persons.

TWO MALE COMPARATORS:

The two posts are termed senior and junior porter and there is
obviously an allocation of duties on a formal or informal basis
between them.

The senior porter has a supervisory function over the junior and
bears more responsibility then does the junior.

However, since the job inspection, the male who was then senior
porter has retired and been replaced on a temporary basis by a
retired bank porter - a man who himself is clearly older then the
recognised retirement age, and yet who apparently can meet the
requirements of the bank in all the areas of responsibility,
security, physical activity and mental effort set out in the
Bank's Job Descriptions.

The point we make most strongly to the Court is the danger of
double-counting the tasks performed by both comparators and we
believe the Equality Officer in this case has fallen into that
trap.

We believe for instance, that the proportion of time spent by each
porter in carrying out the tasks ascribed to him are essential to
interpreting "like work." Can we believe, for instance, that both
porters perform all the tasks set out by the Equality Officer on
Page 14, or is there not, far more likely, an allocation of tasks
between them.

When one porter goes out to deliver items to local businesses,
other A.I.B. branches, or other banks, it can only leave one other
person to do all the other tasks described. If that person stays
on duty watching for pickpockets on the bank premises, there's
nobody there to carry out all the other duties as set out.


We therefore, seek from the Court a clear analysis of the time
allocated to the carrying out of these tasks, since otherwise it
may be assumed both comparators perform all of the tasks described
on a daily basis, and there must be double-counting involved if
that is taken as factual.

The junior porter, the Equality Officer states, cleans the brasses
outside the bank, washes the walls outside (bank states) delivers
mail and "valuable" items to branches of A.I.B., local businesses,
or to other banks, and puts out garbage twice weekly.

SECTION 3 (B):

We believe that the Equality Officer has erred in paragraph 23,
page 16, in deciding that similar work was not performed by the
claimants and comparators.

We make the argument on the basis of the precedent created in
Dowdall & O'Mahoney (EP 2/87) where the Labour Court said - "both
claimants and comparators perform general operative factory work.
It is the view of the Court that it is the intention of Section 3
(b) to cover claims from persons employed in such situations as
opposed to persons employed on the same work which is covered by
Section 3 (a) e.g., two bus conductors, or work that it not the
same or similar which is covered by Section 3 (c) e.g., a clerical
worker and a general worker."

By this interpretation Section 3(b) is not a narrow extension of
3(a), but a separate entity standing on it's own. Both claimants
and comparators provide a service to the bank and we believe it is
immaterial what that service may be to meet the requirements of
this section. The test must then be if the differences in work
performed by claimants and comparators are of small importance to
the work as a whole.

Essentially, the comparison must lie between the junior porter and
the cleaners since it is quite clear he performs certain cleaning
tasks, and the question must be if those other tasks performed by
him meet the terms set by Section 3 (b).

We do not believe that this question can be answered adequately
without knowing the proportion of time spent by the Junior porter
in carrying out cleaning - related tasks, as against other more
demanding tasks. The point would be, we believe, if those greater
demands or differences warranted of themselves a difference in
remuneration between claimants and comparators, but, we must have
some criteria on which to make that judgement.


SECTION 3 (C) - SKILL

We strongly refute the interpretation made by the Equality Officer
in relation to like work under this section. So far as the
analysis of the cleaners tasks are concerned it is, in or view,
invidious to state that a day or so is enough to learn how to
operate a vacuum cleaner. We all know we could learn how to
switch any machine on or off quite quickly, but, it's another
matter altogether to operate it effectively in a number of
situations, maintaining it, carrying it etc. Likewise, it is easy
enough to get to know the two bank premises, but there also has to
be certain options which experience only can indicate - the areas
that staff and public will use first, the areas most effected by
weather etc., and we would submit skill and experience is required
to meet these needs.

We should say that our claimant members take exception totally to
the inference that the porters have a requirement to read, which
they don't share. We would point out that cleaners are required
to read maker's instructions on various machines, solutions on
detergents, etc., that they use, and they resent totally the
inference that somehow they don't need to be educated to function
as a cleaner.

The also note that while they should be able to know the bank
premises within a day or so, for the porters knowledge of the bank
premises suddenly becomes a "plus" when the porter is asked for
directions by a customer, but, not so when a cleaner is asked, as
would happen on occasion.

Under "mental effort" the Equality Officer rightly sees the tasks
carried out by the cleaners as meriting particular mention, but,
in our view does not give sufficient emphasis to the fact that the
cleaner must vary her routine to meet certain contingencies -
i.e., she may have to leave an area to be cleaned later if a need
becomes apparent, but also must be conscious of the fact that she
must meet a time factor in concluding her work.

The initiative demands made on the junior porter we believe to be
equal to those of the cleaner, and again, we warn of the tendency
to double-count in assessing the tasks carried out by the porters.

RESPONSIBILITY

Under this factor the Equality Officer identifies correctly the
tasks carried out by the cleaners which carry demands in relation
to responsibility. As we see it, all employees of a bank bear
responsibilities, particularly in relation to security. The
amount of responsibility each person carries varies, and obviously


in a security situation the brunt is borne by the bank manager,
the security aspect, of itself, may lie next heaviest on the
security staff employed for that purpose and then it is shared by
the porters and other staff members.

Obviously, because they are uniformed porters some specific
responsibility for security falls on the comparators and primarily
on the senior porter rather than the junior porter.

Vigilance is required of all bank staff, and we do not believe in
any sense excludes the cleaners in this case, and they should be
given credit for that.

CONCLUSION:

Throughout this submission we have been at pains to point out the
dangers of double-counting of the tasks carried out by the
comparators. We believe the inherent flaw in this recommendation
is that the Equality Officer has accepted, without saying so, that
the claimants perform like work with each other. Since the two
claimants have agreed with each other the areas they will each
clean, there is no dispute on that issue.

The comparators, however, are a senior and a junior porter and by
definition, one holds supervisory role in relation to the other.
The senior porter carries out some specific tasks which are not
carried out by the junior porter, and vice versa, and by
definition they cannot be seen to do like work with each other.

In such circumstances, in our view, the Equality Officer was
required to deal with this dispute before her by separately making
the comparison of like work between the cleaners and each of the
two comparators named.

Not to do so, we believe, has been in breach of the letter and the
spirit of the act, and has left our members at a serious
disadvantage. Under European casework we believe there is a
requirement placed on this Court, the final Court to hear evidence
related to the facts of the dispute, to investigate the dispute,
making the comparisons under both sections of the act against both
comparators.

We expect the Court to give it's reasons for it's decisions within
it's determination and if it does not do so, we reserve the right
to proceed to ensure that such requirement, already legally
identified, is met by the Court.

We would ask the Court to consider all the points we make in this
appeal and believe that on investigation they will see the need
for this recommendation to be overturned as being intrinsically
flawed and will find for the claimants.

________________________
LIAM PEPPARD
Date 18th April, 1990.