FULL RECOMMENDATION
SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974 PARTIES : THE REVENUE COMMISSIONERS DEPARTMENT OF FINANCE (REPRESENTED BY THE CHIEF STATE SOLICITOR'S OFFICE) - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr Rorke |
1. Appeal against Equality Officer's Recommendation EP7/96.
BACKGROUND:
2. The claimant is employed as a Tax Officer in the Office of the Chief Inspector of Taxes on a job-sharing basis. In October, 1994, the Union submitted a claim for equal pay on her behalf through the General Council of the Civil Service under the Civil Service Conciliation and Arbitration Scheme. Disagreement was recorded at the General Council and in June, 1995, the Union referred the claim to an Equality Officer for investigation and recommendation under the terms of the Anti-Discrimination (Pay) Act, 1974. The Union claimed that the worker was entitled to the same rate of remuneration as a named male comparator, who was working on a full-time basis, with regard to payments in respect of public holidays, bank holidays and privilege days on the grounds that both the claimant and the comparator performed like work in terms of Section 3 of the Anti-Discrimination (Pay) Act, 1974. The Equality Officer issued her Recommendation on the 19th of September, 1996, as follows:-
"In view of my conclusions in the preceding paragraphs I find that the claimant, as a job-sharer, is not entitled to similar payments/time off as the comparator but is, correctly, in receipt of payments/time off pro rata to the comparator."
(Full details of the background to the case and the Equality Officer's conclusions are outlined in the Equality Officer's Recommendation No. EP7/96).
The Union appealed the Recommendation to the Labour Court on the 24th of October, 1996, on the following grounds:-
"(a) The Equality Officer erred in fact and in law in finding that the Claimant had the same rate of remuneration as the Comparator pro rata to the hours worked. She failed to consider and give due weight to the fact that the claim related to a minimum entitlement applying to other workers in respect of statutory holidays.
(b) The Equality Officer erred in fact and in law by taking into account the treatment of other job-sharers relative to the Claimant.
(c) The Equality Officer erred in fact and in law by finding that the rota is not imposed on the Claimant.
(d) The Equality Officer erred in fact and in law by failing to give due weight to Labour Court Recommendation No.14703 in her findings.
(e) The Equality Officer erred in fact and in law in finding that the Claimant was only entitled to time off "in direct proportion to the hours she works".
(f) The Equality Officer erred in fact and in law by failing to give due weight to the case of Jenkins -v- Kingsgate, Case No. 96/80.
(g) The Equality Officer erred in fact and in law by finding that the Claimant was in receipt of equal remuneration with the Comparator in the terms of the 1974 Act."
The Labour Court heard the appeal on the 25th of June, 1998. Both parties made written and oral submissions to the Court. The Employer objected to the appeal on the grounds that, as the Anti-Discrimination (Pay) Act, 1974, relates solely to claims for remuneration, it precludes any claim based on discrimination relating to matters other than remuneration. The Employer concurred with the Equality Officer's conclusion that the claimant was in receipt of equal remuneration with the comparator in terms of the 1974 Act.
DETERMINATION:
The claimant in this case is a job-sharer who works alternate weeks. The comparator is a full-time officer of the respondent. They are both performing like work. The job-sharing scheme was introduced in the Civil Service by Government decision in 1984 as a job creation measure. A concomitant objective of the scheme is to facilitate civil servants in fulfilling work and family responsibilities. It is common case that the vast majority of job-sharers are women.
The claimant's remuneration and conditions of employment are in accordance with those approved by the Department of Finance for the operation of the job-sharing scheme and set out in Circular 3/84. This circular provides, in effect, that the pay and other conditions of employment of job-sharing staff shall be 50% of that applicable to full-time staff.
With regard to entitlement to public and privileged holidays the Circular provides as follows:
- "In the case of job-sharing staff who arenotconditioned to a half day on/half day off attendance regime (e.g. staff following week on/week off or day on/day off regimes) entitlements arising from public or privileged holidays will accrue to the officer who would otherwise be scheduled for duty on the day in question. In such cases, however, the normal attendance regime will, where necessary, be varied slightly by Departments with a view to allowing both job-sharing partners to benefit equally from public and privileged holidays".
It is argued on behalf of the claimant that this arrangement offends against Section 2(1) of the Anti-Discrimination (Pay) Act, 1974 (“the 1974 Act”) in that it provides job-sharers with half the entitlement to public and privileged holidays as that provided to full-time staff.
The entitlement of job-sharers in respect of public holidays has since been changed following the enactment of the Organisation of Working Time Act, 1997. They are now entitled to one-tenth of two weeks' pay in respect of a public holiday which falls on a day on which they would not normally work.
The Equality Officer concluded that the claimant is in receipt of equal remuneration, pro rata, with the comparator and found that her claim was not well founded. It is against that recommendation that the claimant appealed to the Court.
The background to the case and the detailed submissions of the parties, which were repeated to the Court, are accurately recited in the report of the Equality Officer.
The Court has taken full and careful account of the written and oral submissions of the parties. It has also considered the decisions of the European Court of Justice, the High Court and of this Court, to which it was referred, and which are listed in the appendix to this Determination.
In substance, it is the claimant's case that she should receive the same entitlement in respect of public and privilege holidays as the comparator who works full time. Her claim is based on the proposition that while the "pro rata" principle can be applied to many terms and conditions of employment, entitlement to public holidays is a minimum legal entitlement which cannot be diminished.
In support of that submission IMPACT pointed out that until it was repealed in its entirety by the Organisation of Working Time Act, 1997, the Holiday (Employees) Act, 1973 ("the 1973 Act"), which was amended by the Worker Protection (Regular Part-time Employees) Act, 1991 ("the 1991 Act"), prescribed the minimum entitlements of employees in respect of public holidays. It was claimed that if the terms of that Act were to be applied to the claimant her entitlement in respect of public holidays would be equal to that of the comparator.
It is accepted that civil servants were excluded from the scope of the 1973 Act.
The 1973 Act gave employees within its scope minimum entitlements, subject to certain conditions, in respect of annual leave and public holidays. In the case of annual leave those entitlements only applied to employees who worked 1,400 hours in a leave year. Alternatively, a partial entitlement arose in respect of any calendar month in which the employee worked not less than 120 hours. In the case of public holidays, entitlement under the 1973 Act in the case of "day to day or part-time workers" was conditional on the employee having worked not less than 120 hours in the five weeks preceding the public holiday. Had the terms of the 1973 Act been applied to job-sharers, the result would have been to afford them entitlements in respect of both annual leave and public holidays which was significantly less than pro rata those of full-time officers.
The 1973 Act was, however, amended by the 1991 Act. In so far as is relevant to this claim, the effect of this amendment was to afford part-time workers (who had completed thirteen weeks' service) an entitlement in respect of public holidays without any qualification as to time worked. Had the 1973 Act, as amended, been applicable in the case of the claimant she would, from the time of that amendment, have had an entitlement in respect of each public holiday whether or not she would otherwise have been required to work on that day.
While the conditions relating to the job-sharing scheme, including the provisions relating to pro rata treatment in respect of public holidays, may not have been formally agreed with the unions representing staff (including IMPACT) at the time the scheme was introduced, they were clearly accepted until some time after the enactment of the 1991 Act.
This is apparent from the report of the General Council of the Civil Service Conciliation and Arbitration Scheme, which was provided to the Court. This shows that at meetings of the General Council of the 30th of November, 1994, the 25th of January, the 22nd of February and the 29th of March, 1995, the unions pursued a claim on behalf of job-sharers for the introduction of arrangements in respect of public holidays in line with the provisions of the 1973 Act, as amended.
The claim was not conceded and it is from its rejection that the present claim arose. While the report of the General Council records that the Staff Side stated their intention to consider seeking redress under "the Employment Equality and Equal Pay Legislation", a case has not been taken under the Employment Equality Act, 1977 ("the 1977 Act").
Therefore, the only matter for determination by the Court is if, in the circumstances pertaining, Section 2 of the Act of 1974 entitles the claimant to more than pro rata treatment in respect of public holidays.
IMPACT contends that civil servants were excluded from the scope of the 1973 Act because it was anticipated that their conditions of service would always provide entitlements at least equal to those prescribed by statute. They say that while that is the position with regard to civil servants generally, including the comparator, in the case of job-sharers their entitlements in respect of public holidays are now less than the statutory minimum.
The Court cannot speculate as to why the Oireachtas decided to exclude civil servants from the scope of the 1973 Act. Moreover, the reason for such exclusion, whatever it may be, is not relevant to the present claim. The exclusion applies equally to all civil servants and the non-application of a term of the Act to the claimant cannot amount to discrimination.
IMPACT also contends that the non-application of terms similar to those of the 1973 Act bears more heavily on job-sharers, who are predominantly women, in that they are deprived of a benefit in respect of all public holidays which they would otherwise have extended to them. This, they say, is indirect discrimination within the meaning of Section 2 of the 1977 Act. The Court accepts that by virtue of Section 56(2) of the 1977 Act, the provisions of that Act can be construed with the 1974 Act. But indirect discrimination, if such be the case, could only give the claimant a cause of complaint under the 1974 Act if it results in her receiving pay which is unequal to that of the comparator.
The essential fact remains that until the enactment of the Organisation of Working Time Act, 1997, the entitlement of both the claimant and the comparator in respect of public holidays was not a statutory right. Rather it was derived from the employment relationship and was part of their remuneration.
In the Court's opinion, job-sharing is a special arrangement by which two officers agree to share a single full-time post. Within this arrangement the duties of the post are shared equally between the job-sharing partners. The consideration for the fulfilment of those duties is also shared equally.
In relation to the claimant the Court interprets Section 2 of the 1974 Act as providing an entitlement to equal remuneration in respect of the time actually worked. Thus, if each of the two job-sharing partners receive 50% of the consideration received by one person fulfilling those duties alone, inequality in remuneration cannot be held to exist. In the present case there is no reason why one element of remuneration, namely entitlements in respect of public holidays, should be treated differently to any other element.
IMPACT contends that entitlement in respect of public holidays should be regarded as a statutory right and, therefore, not amenable to the application of a pro rata treatment. The Court finds this approach incongruous with a claim that such entitlements are remuneration for the purpose of the 1974 Act.
If it were to be held that entitlement to public holidays is not derived from the employment relationship, but from the operation of a statutory provision, the benefits of that entitlement would not be in consideration of employment. It could not, therefore, be remuneration within the meaning of Section 1(1) of the 1974 Act and any rights allegedly infringed by the non-application of such benefits could not be enforced by way of the present claim for equal pay.
A further point made by IMPACT is that in the event of a public or privilege holiday falling on a day on which the claimant would normally work, after her allotted entitlement has become exhausted, she is obliged to transfer one of her days of annual leave to her job-sharing partner so as to balance their opportunities to benefit from public holidays. They say that no such requirement could ever arise in the case of the comparator. The Court notes that what is in fact required by Circular 3/84 is that in such cases"the normal attendance regime will, where necessary, be varied slightly by Departments with a view to allowing both job-sharing partners to benefitequally from public and privileged holidays". The practice of transferring annual leave is not a requirement of the scheme and is an arrangement voluntarily entered into as an alternative to varying the attendance pattern, which is a requirement of the scheme.
The complaint in that regard relates to an attendance pattern and is not related to pay. As pointed out by the Court in Determination DEE9712 (Department of Finance, The Revenue Commissioners and the Department of Agriculture and Ms. Karen Ormond/Ms. Brigid Mackin Represented by Civil and Public Service Union), while the 1974 Act and the 1977 Act can be construed as one Act, there are separate procedures for the consideration of disputes under each Act. Accordingly, a complaint that is not related to pay cannot be considered by the Court in the present case.
For all of the above reasons, the Court is satisfied that the claimant is in receipt of the same rate of remuneration as the comparator and that her claim is, in reality, for more than equal remuneration. The Court rejects the appeal and upholds the Equality Officer's Recommendation.
Signed on behalf of the Labour Court
Kevin Duffy
28th October, 1998______________________
D.G./D.T.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.
A P P E N D I X
Cases considered by the Court
Jenkins -v- Kingsgate ECJ 1981 96/80
Marshall -v- Southampton Area Health Authority (No. 2) ECJ C-271/91
Kathleen Hill and Ann Stapleton -v- Revenue Commissioners
and the Department of Finance ECJ 1998 C-243/95
Gerster -v- Freistaat Bayern ECJ 1997 C1/95
Arbeiterwohlsahrt Der Stadt Berlin -v- Botel ECJ 1992 C-360/90
Brides & Ors. -v- Minister for Agriculture, Food and Forestry & Anor.
High Court 1996 No. 31SSP ELR Vol. 9 No. 3 1998
Labour Court Determination DEE9712
Labour Court Recommendation LCR14307
Labour Court Recommendation LCR14921