Labour Court Database __________________________________________________________________________________ File Number: AEP953 Case Number: DEP962 Section / Act: S8(1)AD Parties: DEPARTMENT OF AGRICULTURE, FOOD AND FORESTRY (Represented by FOOD AND FORESTRY) - and - IMPACT |
Appeal by the Union against Equality Officer's Recommendation No. EP03/1995.
Recommendation:
The Court is satisfied that:
(a) the Department of Agriculture, Food and Forestry is not the
same employer as Teagasc;
(b) the claimants and the comparator do not have the same terms
and conditions of employment;
(c) the Department of Agriculture, Food and Forestry is not an
associated employer with Teagasc within the meaning of
Section 2(1) or 2(2) of the Act.
The following is the Court's reasoning:
(a) The Department of Agriculture Food and Forestry is not the
same employer as Teagasc.
The Union has argued in its appeal that the Department is the
same employer as Teagasc, that, in effect, the common
employer is the State. It relies for this assertion on the
cases of Foster v. British Gas plc (1990 ECR 1) and Marshall
v. Southampton and South West Hampshire Health Area Authority
(1986 ECR 723). These cases do not assist in relation to the
particular question at issue since they relate to the direct
effect of European Directives, and not to the question of
whether state and semi-state employers are the same employer.
As far as the case before it is concerned, the Court is
satisfied that the Department is a government department with
responsibility for promoting the development of the
agricultural, food and horticultural industries in Ireland.
Originally it was the Department of Lands and Agriculture
under the Ministers and Secretaries Act 1924.
Teagasc, on the other hand, is the Agriculture and Food
Development Authority which provides certain services to the
agricultural and food industries. It was established by the
Agriculture (Research, Training and Advice) Act 1988 ('the
1988 Act'). It is an autonomous body, having an eleven-member
Authority.
In respect of the Department, the State is the employer and
the employees are civil servants. Teagasc is an employer in
its own right, and its employees are its servants. The Court
finds that for the purposes of Section 2(1) of the Act, these
are two separate and distinct employers.
(b) The claimants and the comparator do not have the same terms
and conditions of employment.
The employees of the Department are civil servants recruited
under the 1956 Civil Service Acts. They are the servants of
government administration and can be assigned to any
department. Once assigned, they are responsible to the
relevant Minister, in this case the Minister for Agriculture,
Food and Forestry. Their pay and conditions of employment,
common to all departments of state, are negotiated through
the Civil Service Conciliation and Arbitration Scheme, but
are fixed by the Minister for Finance, who can also alter
them. Civil servants hold office at the pleasure of the
government.
The Authority of Teagasc, on the other hand, employs its own
staff and determines their terms and conditions of
employment. The Minister and the Minister of Finance must
consent to appointments in the overall context of supervision
of the finances of a semi-state body, but the employees are
employees of the Authority which fixes the terms and
conditions of their employment. The 1988 Act provides that
those members of Teagasc's staff who were transferred from
the body which preceded the establishment of Teagasc should
not have less favourable conditions than they would have had
before Teagasc was established. Thus, transferring staff are
protected by the specific provisions in the 1988 Act; the
conditions for all other staff are determined by the
Authority.
As the Equality Officer pointed out in this case, Section
1(1) of the Act specifies that an associated employer may be
treated as the "same employer" IF the employees of both
employers have "the same" terms and conditions of employment.
The Section does not say "similar terms". The Court takes the
view that if employees of two employers had the "same" terms
and conditions of employment, then they would have the same
recruitment procedures, the same grading structures, the same
contractual terms relating to hours of work and conditions of
employment, the same pay structures and the same dismissal
procedures. The Court finds that civil servants, and
specifically those employed at the Department, do not have
the same terms and conditions of employment as the public
servants employed by Teagasc; they certainly have similar
terms, as do many employees in the semi-state sector and
others, such as the employees of certain trade unions. But,
for example, civil servants are not protected by the Unfair
Dismissals Acts, whereas the employees of Teagasc are so
protected. The manner in which one may or may not be
dismissed is a fundamental term of employment, and the
difference between the claimants and the comparator in this
respect demonstrates that the terms and conditions of their
employment are not the same.
(c) The Department is not an associated employer with Teagasc
within the meaning of Section 2(1) or 2(2) of the Act.
If the claimants and the comparator did have the same terms
and conditions of employment, then the employers would not
have to be the same to entitle the parties to the same rate
of remuneration. It would be sufficient for the employers to
be"associated" employers. In this case, the Court has found
that the claimants and the comparator do not have the same
terms and conditions of employment, and, therefore, it does
not have to decide whether the Department and Teagasc are
associated employers. However, since the issue of associated
employer has taken up a considerable part of this case, the
Court has considered the question anyway, and its views are
as follows:
Under the Act, two employers "shall be taken to be associated
if one is a body corporate of which the other (whether
directly or indirectly) has control or if both are bodies
corporate of which a third person (whether directly or
indirectly) has control."
The crucial element in "association" for the purposes of the
Act is, therefore, the question of control.
Teagasc would appear to fit the definition of "body
corporate" set out in A Dictionary of Irish Law (Murdoch,
1988) in that it is "a succession or collection of persons
having in the estimation of the law an existence and rights
and duties distinct from the individual persons who form it
from time to time". The Department, however, is not such a
succession or collection of persons. The Minister for
Agriculture, Food and Forestry is a "corporation sole" (a
corporation consisting of a single person whose corporate
status arises from an office or function) who is responsible
through the government for the administration of the
Department.
The next question is whether the Department has control over
Teagasc. In the view of the Court, the Department would
certainly have an important supervisory function in relation
to how Teagasc spends its money. But this supervision is to
do with State management of public finances, and not with
control over how a state body does its business. The
Department cannot tell Teagasc how to do its work, or even
what work to do. Teagasc's functions are provided for by
statute, and it has "all such powers as are necessary or
expedient for the purposes of its functions" under Section
4(4) of the 1988 Act. There are certain functions which it
cannot do unless authorised by the Minister, and it needs the
consent of the Minister to provide any services outside of
the State, but these controls are limited and are to do with
the extent of the remit which Teagasc has been given, and not
with "how" certain things are to be done. The conferring of
any additional functions on Teagasc by the Minister must be
by order, and such order must be laid before both Houses of
the Oireachtas. The Minister provides funding to Teagasc by
the making of advances to it, but he cannot tell it how he
wants the money spent. Most importantly, the Minister could
not unilaterally decide to close Teagasc down. If Teagasc
were to be put out of existence, that decision would not be
one for the Minister or the Department to take; it would be a
matter for the Government and the Oireachtas. The word
"control" is not defined in the Act, but its ordinary sense
is to mean that there is a power of directing, or to command
an activity. The Court is satisfied that while the Minister
has certain authority in relation to Teagasc, he does not
have direct control of it, and such indirect control as he
might have through his membership of the government and
as a member of the Oireachtas is too far removed from real
control to amount to control within the meaning of the
Section. The Court has noted the Northern Ireland case of
Hasley v. Fair Employment Agency (1989 IRLR 106) in which the
argument was made that the Fair Employment Agency and the
Equal Opportunities Commission for Northern Ireland were
"associated employers" since both were directly or indirectly
controlled by the Department of Economic Development and the
Department of Finance and Personnel. In that case, the Court
of Appeal for Northern Ireland agreed that the Departments
did "control" the Agency and the Commission. It found that
those Departments had financial control over the two bodies
and also control over the numbers and grades of the persons
employed and of their terms and conditions of employment. By
comparison with this control, the Appeal Court found, the
functional independence that the Agency and the Commission
enjoyed was irrelevant. However, for other reasons, the Court
of Appeal found that the Agency and the Commission were not
associated employers within the meaning of the Northern
Ireland Equal Pay Act of 1970. However, it is not being
suggested in this case that both Teagasc and the Department
are "bodies corporate" and that the Department of Finance is
a third "person" within the meaning of Section 2(2) of the
Act which has control over both. Even if it were, the Court
would not necessarily agree that functional independence was
irrelevant in relation to Teagasc.
For all the above reasons, the Court dismisses the appeal.
Division: Mr Flood Mr Pierce Mr Rorke
Text of Document__________________________________________________________________
AEP953 DETERMINATION NO. DEP296
ANTI-DISCRIMINATION (PAY) ACT, 1974
SECTION 8(1)
PARTIES:
DEPARTMENT OF AGRICULTURE, FOOD AND FORESTRY
AND
IMPACT
SUBJECT:
1. Appeal by the Union against Equality Officer's Recommendation
No. EP03/1995.
BACKGROUND:
2. This is an appeal by IMPACT on behalf of ten Poultry Officers
('the claimants') employed by the Department of Agriculture
Food and Forestry ('the Department') against Recommendation
EP03/1995 of an Equality Officer in relation to a claim under
the Anti-Discrimination (Pay) Act 1974 ('the Act') by the
claimants for equal pay with a comparator employed by
Teagasc.
The Equality Officer had found that the claimants and the
comparator did perform like work with each other within the
meaning of Section 3(c) of the Act.
However, he found that there were fundamental differences in
the terms and conditions of employment between the claimants
and the comparator, and concluded, therefore, that they did
not have the same terms and conditions of employment for the
purposes of Section 2(1), and that, consequently, the
Department and Teagasc were not "associated" employers.
The Union argued that the State was the employer of both the
claimants and the comparator, and that, therefore, they had
the "same employer". Alternatively, it argued that the
claimants and the comparator had the same terms and
conditions of employment and that the Department and Teagasc
were "associated" employers.
The Department, in answering the appeal, supported the
findings of the Equality Officer that the claimants and the
comparators did not have the same terms and conditions of
employment.
The Department had sought, at the beginning of the appeal, to
argue that the claimants and the comparators were not
employed on "like work", but this aspect of the case was not
pursued.
(It should also be noted that the issue of whether or not the
claimants and the comparator were employed in the same place,
while in contention before the Equality Officer, was not a
matter on which the Equality Officer deemed it necessary to
make a finding. The Court also makes no finding on the
issue.)
The Union appealed EP03/1995, on the 10th of July, 1995, on
the following grounds:-
"(i) The Equality Officer erred in law and in fact in
finding that the Respondent had not contravened the
1974 Anti-Discrimination (Pay) Act with regard to the
pay of the claimants.
(ii) If the Equality Officer found that the Department of
Agriculture, Food and Forestry and Teagasc are not
associated employers for the purposes of Section 2 of
the 1974 Act, which is denied, he erred in law and in
fact in so finding.
(iii) The Equality Officer erred in law and in fact in
finding that the claimants and the comparator did not
have the same terms and conditions of employment for
the purposes of Section 2 of the 1974 Act.
(iv) The Equality Officer erred in law and in fact in not
awarding equal pay and arrears of equal pay to the
claimants.
(v) On all grounds that have been submitted during the
Equality Officer's investigation and such other
grounds as may arise during the course of the appeal."
The Court heard the appeal on 23rd of November, 1995 and has
considered all the submissions, both verbal and written, made
to it by the parties.
DETERMINATION
The Court is satisfied that:
(a) the Department of Agriculture, Food and Forestry is not the
same employer as Teagasc;
(b) the claimants and the comparator do not have the same terms
and conditions of employment;
(c) the Department of Agriculture, Food and Forestry is not an
associated employer with Teagasc within the meaning of
Section 2(1) or 2(2) of the Act.
The following is the Court's reasoning:
(a) The Department of Agriculture Food and Forestry is not the
same employer as Teagasc.
The Union has argued in its appeal that the Department is the
same employer as Teagasc, that, in effect, the common
employer is the State. It relies for this assertion on the
cases of Foster v. British Gas plc (1990 ECR 1) and Marshall
v. Southampton and South West Hampshire Health Area Authority
(1986 ECR 723). These cases do not assist in relation to the
particular question at issue since they relate to the direct
effect of European Directives, and not to the question of
whether state and semi-state employers are the same employer.
As far as the case before it is concerned, the Court is
satisfied that the Department is a government department with
responsibility for promoting the development of the
agricultural, food and horticultural industries in Ireland.
Originally it was the Department of Lands and Agriculture
under the Ministers and Secretaries Act 1924.
Teagasc, on the other hand, is the Agriculture and Food
Development Authority which provides certain services to the
agricultural and food industries. It was established by the
Agriculture (Research, Training and Advice) Act 1988 ('the
1988 Act'). It is an autonomous body, having an eleven-member
Authority.
In respect of the Department, the State is the employer and
the employees are civil servants. Teagasc is an employer in
its own right, and its employees are its servants. The Court
finds that for the purposes of Section 2(1) of the Act, these
are two separate and distinct employers.
(b) The claimants and the comparator do not have the same terms
and conditions of employment.
The employees of the Department are civil servants recruited
under the 1956 Civil Service Acts. They are the servants of
government administration and can be assigned to any
department. Once assigned, they are responsible to the
relevant Minister, in this case the Minister for Agriculture,
Food and Forestry. Their pay and conditions of employment,
common to all departments of state, are negotiated through
the Civil Service Conciliation and Arbitration Scheme, but
are fixed by the Minister for Finance, who can also alter
them. Civil servants hold office at the pleasure of the
government.
The Authority of Teagasc, on the other hand, employs its own
staff and determines their terms and conditions of
employment. The Minister and the Minister of Finance must
consent to appointments in the overall context of supervision
of the finances of a semi-state body, but the employees are
employees of the Authority which fixes the terms and
conditions of their employment. The 1988 Act provides that
those members of Teagasc's staff who were transferred from
the body which preceded the establishment of Teagasc should
not have less favourable conditions than they would have had
before Teagasc was established. Thus, transferring staff are
protected by the specific provisions in the 1988 Act; the
conditions for all other staff are determined by the
Authority.
As the Equality Officer pointed out in this case, Section
1(1) of the Act specifies that an associated employer may be
treated as the "same employer" IF the employees of both
employers have "the same" terms and conditions of employment.
The Section does not say "similar terms". The Court takes the
view that if employees of two employers had the "same" terms
and conditions of employment, then they would have the same
recruitment procedures, the same grading structures, the same
contractual terms relating to hours of work and conditions of
employment, the same pay structures and the same dismissal
procedures. The Court finds that civil servants, and
specifically those employed at the Department, do not have
the same terms and conditions of employment as the public
servants employed by Teagasc; they certainly have similar
terms, as do many employees in the semi-state sector and
others, such as the employees of certain trade unions. But,
for example, civil servants are not protected by the Unfair
Dismissals Acts, whereas the employees of Teagasc are so
protected. The manner in which one may or may not be
dismissed is a fundamental term of employment, and the
difference between the claimants and the comparator in this
respect demonstrates that the terms and conditions of their
employment are not the same.
(c) The Department is not an associated employer with Teagasc
within the meaning of Section 2(1) or 2(2) of the Act.
If the claimants and the comparator did have the same terms
and conditions of employment, then the employers would not
have to be the same to entitle the parties to the same rate
of remuneration. It would be sufficient for the employers to
be"associated" employers. In this case, the Court has found
that the claimants and the comparator do not have the same
terms and conditions of employment, and, therefore, it does
not have to decide whether the Department and Teagasc are
associated employers. However, since the issue of associated
employer has taken up a considerable part of this case, the
Court has considered the question anyway, and its views are
as follows:
Under the Act, two employers "shall be taken to be associated
if one is a body corporate of which the other (whether
directly or indirectly) has control or if both are bodies
corporate of which a third person (whether directly or
indirectly) has control."
The crucial element in "association" for the purposes of the
Act is, therefore, the question of control.
Teagasc would appear to fit the definition of "body
corporate" set out in A Dictionary of Irish Law (Murdoch,
1988) in that it is "a succession or collection of persons
having in the estimation of the law an existence and rights
and duties distinct from the individual persons who form it
from time to time". The Department, however, is not such a
succession or collection of persons. The Minister for
Agriculture, Food and Forestry is a "corporation sole" (a
corporation consisting of a single person whose corporate
status arises from an office or function) who is responsible
through the government for the administration of the
Department.
The next question is whether the Department has control over
Teagasc. In the view of the Court, the Department would
certainly have an important supervisory function in relation
to how Teagasc spends its money. But this supervision is to
do with State management of public finances, and not with
control over how a state body does its business. The
Department cannot tell Teagasc how to do its work, or even
what work to do. Teagasc's functions are provided for by
statute, and it has "all such powers as are necessary or
expedient for the purposes of its functions" under Section
4(4) of the 1988 Act. There are certain functions which it
cannot do unless authorised by the Minister, and it needs the
consent of the Minister to provide any services outside of
the State, but these controls are limited and are to do with
the extent of the remit which Teagasc has been given, and not
with "how" certain things are to be done. The conferring of
any additional functions on Teagasc by the Minister must be
by order, and such order must be laid before both Houses of
the Oireachtas. The Minister provides funding to Teagasc by
the making of advances to it, but he cannot tell it how he
wants the money spent. Most importantly, the Minister could
not unilaterally decide to close Teagasc down. If Teagasc
were to be put out of existence, that decision would not be
one for the Minister or the Department to take; it would be a
matter for the Government and the Oireachtas. The word
"control" is not defined in the Act, but its ordinary sense
is to mean that there is a power of directing, or to command
an activity. The Court is satisfied that while the Minister
has certain authority in relation to Teagasc, he does not
have direct control of it, and such indirect control as he
might have through his membership of the government and
as a member of the Oireachtas is too far removed from real
control to amount to control within the meaning of the
Section. The Court has noted the Northern Ireland case of
Hasley v. Fair Employment Agency (1989 IRLR 106) in which the
argument was made that the Fair Employment Agency and the
Equal Opportunities Commission for Northern Ireland were
"associated employers" since both were directly or indirectly
controlled by the Department of Economic Development and the
Department of Finance and Personnel. In that case, the Court
of Appeal for Northern Ireland agreed that the Departments
did "control" the Agency and the Commission. It found that
those Departments had financial control over the two bodies
and also control over the numbers and grades of the persons
employed and of their terms and conditions of employment. By
comparison with this control, the Appeal Court found, the
functional independence that the Agency and the Commission
enjoyed was irrelevant. However, for other reasons, the Court
of Appeal found that the Agency and the Commission were not
associated employers within the meaning of the Northern
Ireland Equal Pay Act of 1970. However, it is not being
suggested in this case that both Teagasc and the Department
are "bodies corporate" and that the Department of Finance is
a third "person" within the meaning of Section 2(2) of the
Act which has control over both. Even if it were, the Court
would not necessarily agree that functional independence was
irrelevant in relation to Teagasc.
For all the above reasons, the Court dismisses the appeal.
~
Signed on behalf of the Labour Court
7th May, 1996 Finbarr Flood
M.K./D.T. _______________
Deputy Chairman
Note
Enquiries concerning this Determination should be addressed to Mr.
Michael Keegan, Court Secretary.