Labour Court Database __________________________________________________________________________________ File Number: AEP939 Case Number: DEP947 Section / Act: S8(1)AD Parties: THE IRISH CROWN CORK COMPANY LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Reconsideration of Appeal of EP4/90 insofar as its arises under Section 2(3) of the Act.
Recommendation:
3. 1. The Labour Court having considered the written and
verbal submissions of the parties determines as
follows:-
2. The Labour Court was satisfied that the work for which
Mr. Carr was paid at the Grade 2 rate was equal in value
to the work of the claimants. Mr. Carr and the
claimants were consequently employed on "like work"
within the meaning of Section 3(c) of the Act, and the
claimants were entitled to the same rate of remuneration
as Mr. Carr (in relation to his Grade 2 payment only).
Having reached that conclusion, the Court was required
to consider the submission of the Company that there
were grounds other than sex for the payment of a higher
rate of remuneration to Mr. Carr. The Company claims
that Mr. Carr merited the Grade 2 rate of pay because of
his relief work on the multi-die machine, (and because
for personal reasons he was moved to less onerous
duties). It was for his availability to perform certain
multi-die work and other (Grade 2) replacement work, as
well as the cleaning duties (which was essentially Grade
3 work), that he was given a Grade 2 rating. It was,
the Company claims, Mr. Carr's economic value to the
Company, which induced the Company to pay him at a
higher rate, and not on grounds of his sex.
3. The Court is not satisfied that the Company's arguments
are valid. Prior to Mr. Carr's change from Grade 1
operations to the Cleaning position the multi-die
reliefs were carried out by the overseers or by the
Grade 1 operatives working overtime, without any
evidence of a serious economic difficulty arising, or
any identification of a need to change existing
practice. The Court is satisfied that the actual reason
for the change in Mr. Carr's employment was to
accommodate his personal preference and in sworn
evidence to the Court Mr. Carr stated that the question
of the need for relief on multi-die was never an issue
raised with him.
4. The Court also examined the pay policy of the Company
and found that men occupied the posts which carried the
higher rates of pay, and women occupied posts which
carried the lower rates. The Company made the point in
evidence that only very few women applied for Grade 1 or
2 jobs. The reason for this could well be that the
culture in the Company was to identify certain jobs as
"men's jobs" and other jobs as "women's jobs".
5. The Court is satisfied that in fact the payment of Mr.
Carr at a rate which was higher than the rate paid to
the claimants, although of equal value with theirs, was
because he was a man.
6. In arriving at this decision the Court considered
the European Court of Justice judgement in the Bilka
Kaufhaus v Weber Von Hartz (case 170/84). According to
the European Court, it is for the national Court to
determine whether and to what extent grounds put forward
by an employer to explain the adoption of a pay practice
which applies independently of a worker's sex but in
fact affects more women than men may be regarded as
objectively justified on economic grounds and whether
the measures chosen by the employer correspond to a real
need on the part of the undertaking. The Company has
not proved to the satisfaction of the Court that its
action in paying Mr. Carr at a higher rate than that
paid to the claimants for the short-term reliefs on the
multi-die machine corresponded to a real need on the
part of the undertaking or that it could be regarded as
objectively justified on economic grounds.
Division: Ms Owens Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
AEP939 DETERMINATION NO. DEP794
ANTI DISCRIMINATION (PAY) ACT, 1974
PARTIES:
THE IRISH CROWN CORK COMPANY LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Reconsideration of Appeal of EP4/90 insofar as its arises
under Section 2(3) of the Act.
BACKGROUND:
2. 1. The Labour Court heard an appeal by Irish Crown Cork
Company Ltd. ('the Company') against a finding by an
Equality Officer (EP4/1990) that Martina Desmond and
fifty-three others were performing like work with a
comparator who was paid at a higher grade rate, and a
recommendation that they were entitled to be paid at the
same rate of pay.
2. The Court issued its Determination (DEP1092) on 11th
March, 1992 and rejected the appeal by the Company.
3. The Company subsequently appealed the Determination to
the High Court on two points of law. The first ground
of appeal was that the Labour Court misdirected itself
in law in finding that the only comparator relied upon
(Mr. Sean Carr) performed like work to that of the
Defendants by disregarding an important part of his work
and therefore comparing only part of his work with the
work of the Defendants. The second ground argued was
that the Labour Court misdirected itself in law in the
manner in which it failed to apply Section 2(3) of the
Act in relation to Mr. Carr.
4. With regard to the first ground of appeal the High Court
(Lynch J.) found that the Labour Court was entitled to
arrive at its decision in the manner in which it did,
and that the decision, being one of fact, could not be
reviewed in the High Court.
5. As regards the second ground of appeal, the High Court
found that there was "an error of law in the confusion
and assumptions on the face of this part of the Labour
Court's determination", and it remitted the matter to
the Labour Court to reconsider the appeal in so far as
it arises under Section 2(3) of the Act and to arrive at
such determination as the Court might think proper in
the light of the High Court judgement and of the facts
as found by the Labour Court.
6. The Labour Court, in obedience to the direction in the
High Court order dated 15th July, 1993, reconvened the
hearing of the Company's appeal on 4th March, 1994.
7. The issue before the Labour Court on this second hearing
was whether the difference in the rates of pay between
Mr. Carr and the claimants was or was not genuinely
attributable to grounds other then sex. The relevant
provision is Section 2(3) of the Anti-Discrimination
(Pay) Act, 1974, which states:-
"Nothing in this Act shall prevent an employer from
paying to his employees who are employed on like
work in the same place different rates of
remuneration on grounds other than sex."
8. Appended to this Determination is the High Court Order
and the written submissions of the parties. Both
parties submitted additional oral information at the
appeal which was considered by the Court.
DETERMINATION
3. 1. The Labour Court having considered the written and
verbal submissions of the parties determines as
follows:-
2. The Labour Court was satisfied that the work for which
Mr. Carr was paid at the Grade 2 rate was equal in value
to the work of the claimants. Mr. Carr and the
claimants were consequently employed on "like work"
within the meaning of Section 3(c) of the Act, and the
claimants were entitled to the same rate of remuneration
as Mr. Carr (in relation to his Grade 2 payment only).
Having reached that conclusion, the Court was required
to consider the submission of the Company that there
were grounds other than sex for the payment of a higher
rate of remuneration to Mr. Carr. The Company claims
that Mr. Carr merited the Grade 2 rate of pay because of
his relief work on the multi-die machine, (and because
for personal reasons he was moved to less onerous
duties). It was for his availability to perform certain
multi-die work and other (Grade 2) replacement work, as
well as the cleaning duties (which was essentially Grade
3 work), that he was given a Grade 2 rating. It was,
the Company claims, Mr. Carr's economic value to the
Company, which induced the Company to pay him at a
higher rate, and not on grounds of his sex.
3. The Court is not satisfied that the Company's arguments
are valid. Prior to Mr. Carr's change from Grade 1
operations to the Cleaning position the multi-die
reliefs were carried out by the overseers or by the
Grade 1 operatives working overtime, without any
evidence of a serious economic difficulty arising, or
any identification of a need to change existing
practice. The Court is satisfied that the actual reason
for the change in Mr. Carr's employment was to
accommodate his personal preference and in sworn
evidence to the Court Mr. Carr stated that the question
of the need for relief on multi-die was never an issue
raised with him.
4. The Court also examined the pay policy of the Company
and found that men occupied the posts which carried the
higher rates of pay, and women occupied posts which
carried the lower rates. The Company made the point in
evidence that only very few women applied for Grade 1 or
2 jobs. The reason for this could well be that the
culture in the Company was to identify certain jobs as
"men's jobs" and other jobs as "women's jobs".
5. The Court is satisfied that in fact the payment of Mr.
Carr at a rate which was higher than the rate paid to
the claimants, although of equal value with theirs, was
because he was a man.
6. In arriving at this decision the Court considered
the European Court of Justice judgement in the Bilka
Kaufhaus v Weber Von Hartz (case 170/84). According to
the European Court, it is for the national Court to
determine whether and to what extent grounds put forward
by an employer to explain the adoption of a pay practice
which applies independently of a worker's sex but in
fact affects more women than men may be regarded as
objectively justified on economic grounds and whether
the measures chosen by the employer correspond to a real
need on the part of the undertaking. The Company has
not proved to the satisfaction of the Court that its
action in paying Mr. Carr at a higher rate than that
paid to the claimants for the short-term reliefs on the
multi-die machine corresponded to a real need on the
part of the undertaking or that it could be regarded as
objectively justified on economic grounds.
~
Signed on behalf of the Labour Court
13th October, 1994 Evelyn Owens
J.F./M.M. ____________
Chairman
Note
Enquiries concerning this Determination should be addressed to Mr.
Jerome Forde, Court Secretary.
APPENDICES
Appendix 1. The High Court Order.
Appendix 2. The Company's written submission.
Appendix 3. The Union's written submission.