Labour Court Database __________________________________________________________________________________ File Number: AEP906 Case Number: DEP934 Section / Act: S8(1)AD Parties: DEPARTMENT OF TOURISM AND TRANSPORT - and - 3 WORKERS;GALLAGHER SHATTER, SOLICITORS |
Appeal by three (3) workers against Equality Officer's Recommendation Nos. EP3/1990 and EE9/1990 concerning a claim by 3 female Communications Assistants that they; (a) are entitled to the same rate of basic pay, overtime, shift allowance and pension rights as two Radio Officers and (b) have been treated less favourably because of their sex than male Radio Officers.
Recommendation:
The Court has considered the submissions made by the parties to
the appeal against the Equality Officers Recommendation.
The Court is satisfied that skills demanded of a properly
qualified Radio Officer are greater than those required of a
Communications Assistant, and it further notes the obligations of
the Department under International Conventions to staff the
station in question with acceptably qualified personnel.
These skills are in large measure required to handle emergencies
which involve Radio Officers in levels of responsibility over and
above those asked of the Communications Assistant.
For these reasons the Court endorses the conclusions of the
Equality Officers in this case and rejects the appeal by the
workers concerned.
Division: Mr O'Connell Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
AEP906 DETERMINATION NO. DEP493
ANTI-DISCRIMINATION (PAY) ACT, 1974
EMPLOYMENT EQUALITY ACT, 1977
DETERMINATION NO. 493 OF 1993
PARTIES: DEPARTMENT OF TOURISM AND TRANSPORT
AND
3 WORKERS
(REPRESENTED BY GALLAGHER SHATTER, SOLICITORS)
SUBJECT:
1. Appeal by three (3) workers against Equality Officer's
Recommendation Nos. EP3/1990 and EE9/1990 concerning a claim by 3
female Communications Assistants that they;
(a) are entitled to the same rate of basic pay, overtime,
shift allowance and pension rights as two Radio Officers
and
(b) have been treated less favourably because of their sex
than male Radio Officers.
BACKGROUND:
2. 1. The background to this case is set out in the Equality
Officer's Recommendations which are Appendix 1 to this
Determination. The Equality Officer in his Recommendation
No. EP3/1990, which was issued on the 14th June, 1990 found
that;
"the work performed by each of the claimants was not
like work with that performed by any of the comparators
within the meaning of either Section 3(b) or 3(c) of the
Anti-Discrimination (Pay) Act 1974 and therefore were
not entitled to the same rate of basic pay, overtime,
shift allowance and pension rights."
2. The Equality Officer in his Recommendation No. EE9/1990,
which was issued on the 14th June, 1990 found that;
"the Department of Tourism and Transport had not
discriminated against the claimants contrary to the
terms of the Employment Equality Act, 1977."
3. The workers appealed both Recommendations to the Labour Court
on the 25th July, 1990 on the following grounds:
Anti-Discrimination (Pay) Act 1974 - (EP3/1990)
The Equality Officer was mistaken in law and in fact in:-
(1) Finding that a dispute did not exist for the purposes of
the Act until the 13th June, 1989, when the claim was
referred by the Labour Court to an Equality Officer for
investigation (paragraph 15).
(2) Finding that, although the duties performed by the
Claimants/Appellants and their comparators are similar
in nature, that the differences which occur are of more
than small importance in that they require of the
comparators additional qualifications and skills and
that as a consequence "like work" does not exist within
the meaning of Section 3(b) of the Act (paragraph 18).
(3) Finding that although the demands on the
Claimants/Appellants and their comparators are "broadly
equal in relation to working conditions........,
physical effort........, and mental effort........, that
the work performed by the comparators is more demanding
in terms of skill and responsibility and that as a
result "like work" does not exist within the meaning of
Section 3(c) of the Act (paragraph 19).
(4) Finding that the differences between the work of the
Claimants/Appellants and their comparators are such as
justify a difference in grading irrespective of the sex
of the job holder.
Employment Equality Act, 1977 - (EE9/1990)
The Equality Officer was mistaken in law and in fact in:-
(1) Finding that the work performed by the Radio Officers
was more demanding in terms of skill and responsibility
and that the higher level of qualification for
recruitment as a Radio Officer was necessary in order to
perform the wider range of duties associated with that
grade.
(2) Finding that the graduation within the Service is based
on qualifications required and the additional work
performed without considering the question of access by
the Claimants/Appellants to the higher grade through
further training, education and promotion.
(3) Finding that a dispute did not exist for the purposes of
the Act until the 13th of June 1989 when the claim was
referred to the Equality Officer for investigation
(paragraph 22).
(4) His interpretation of Section 19(5) of the Employment
Equality Act, 1977 (paragraph 23).
(5) His approach to the evaluation of the work performed by
the Claimants/Appellants and their comparators, more
particularly,
(a) To the weighting of factors of skill,
qualifications and supervision/responsibility in
his evaluation.
(b) In failing to take account of the history and
the future of the work performed in both grades in
addition to that performed on the date of the work
inspection.
(c) In failing to consider the Claimants capacity
to perform the additional duties in question, with
or without further training.
(6) Placing the burden of proof at all times on the
Claimants/Appellants despite his finding that their work
is similar in nature to that of their comparators.
(7) Failing to limit his investigation and evaluation to the
"work place" in question, i.e. Dublin Airport.
(8) Accepting the recruitment of one person of the opposite
sex to the grades in question within the service, as
conclusive evidence that the grade differentiation is
not based on sex (paragraph 19 EE9/1990).
(9) Failing to direct the production by the employers of
employment details requested by the
Claimants/Appellants and not otherwise available to
them.
4. The Court heard the appeal on the 18th February, 1992. The
written submissions to the Court are attached as appendices 2 and
3.
UNION'S ARGUMENTS:
Anti Discrimination (Pay) Act 1974 - (EP3/1990)
3. 1. The process involved in the Volmet involving the receipt
and transmission of information is comparable and equal to
that performed on the Aeronautical Fixed Telecommunications
Network (AFTN).
2. The same information was transmitted from Cork Airport
by Communications Assistants operating the AFTN system.
3. The Equality Officer wrongly attributed Radio Officer
skill and qualifications as minimum requirements in the duty
as it was performed at Dublin Airport.
4. The Time Division Multiplexer System (TDM) was not a
significant, frequent or important exclusive duty for Radio
Officers at Dublin Airport.
5. Operation of the TDM did not require specialist
qualifications exclusive to Radio Officers.
6. Communications Assistants at Cork Airport performed the
same duty.
7. The Equality Officer was mistaken in assigning any
significance to the statements that a Duty Officer had a
supervisory function.
8. The Equality Officer overvalued the Marine VHF function.
9. The AFTN was the main function of the station at Dublin
Airport and was growing through the years.
Employment Equality Act 1977 - (EE9/1990)
4. 1. The Equality Officer was wrong in concluding that the
comparators at Dublin Airport performed work which required
greater skills and responsibility and a higher level of
qualification than that of the claimants.
2. The Equality Officer in concluding that the differences
were based on the grades of the claimants and the
comparators, failed to extract compelling reasons why the
claimants were denied access to training and education which
would have allowed them compete for Radio Officer posts.
3. Radio Officers were retained on overtime to do AFTN
duties which were previously performed by Communications
Assistants.
4. The recruitment of one female Radio Officer does not
disprove the case of discrimination against the claimants.
COMPANY'S ARGUMENTS:
Anti Discrimination (Pay) Act, 1974 - (EP3/1990)
5. 1. The comparators required Marine General Service
Certification whereas the level of training for the claimants
was not the same.
2. The qualifications of the Comparators are required to
comply with International UN Broadcasting Conventions.
3. The comparators would act as duty officers supervising
the claimants and would have greater responsibility.
4. The comparators underwent formal training whereas the
claimants received on the job training.
5. Operation of the Volmet required training which only the
comparators had.
6. The comparators had greater responsibilities.
Employment Equality Act, 1977 - (EE9/1990)
6. 1. It is only in recent years that women have begun to
follow the career of the comparators.
2. Only one woman applied for a comparator's position and
she was appointed.
3. Women were never denied promotion.
DETERMINATION:
The Court has considered the submissions made by the parties to
the appeal against the Equality Officers Recommendation.
The Court is satisfied that skills demanded of a properly
qualified Radio Officer are greater than those required of a
Communications Assistant, and it further notes the obligations of
the Department under International Conventions to staff the
station in question with acceptably qualified personnel.
These skills are in large measure required to handle emergencies
which involve Radio Officers in levels of responsibility over and
above those asked of the Communications Assistant.
For these reasons the Court endorses the conclusions of the
Equality Officers in this case and rejects the appeal by the
workers concerned.
~
Signed on behalf of the Labour Court
17th June, 1993 John O'Connell
P.O.C./M.H. ---------------
Deputy Chairman