FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : CAHILL MAY ROBERTS - AND - RACHAEL O' LEARY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr. Somers |
1. Appeal of Rights Commissioner's Decision PT8836/02/FL.
BACKGROUND:
2. The dispute before the Court concerns a claim by the Union on behalf of its member who is employed by the Company as a part-time worker, that she is treated less favourably than a named full time comparator. The Union states that the claimant should be paid the same hourly rate as her comparator. It claims that the Company is in breach of the Protection of Employees (Part-Time Work) Act, 2001, (the Act).
The Company rejects the claim stating that the job descriptions of the claimant and the named comparator are different and this difference is reflected in the rates of pay.
The dispute was referred to a Rights Commissioner for investigation. The Rights Commissioner's Decision issued on the 22nd of January, 2003, as follows:-
"The claim is well founded.
The claimant shall be entitled to be paid the same rate of pay as her comparator, i.e. the higher operative rate, from the 1st of January, 2003.
The employer shall pay the claimant €500.00 compensation in respect of the breach of the Act".
The Company appealed the Decision to the Labour Court on the 21st of February, 2003, in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001. A Labour Court hearing took place on the 16th of May, 2003.
DETERMINATION:
The Union’s claim against the employer was on the grounds that one of its members a part-time worker was paid less than a comparable full-time worker, in terms of the hourly rate paid.
The Employer argued: -
1. That there are objective reasons for the unfavourable treatment of the part-time workers.2. That in any case, they are not treating the part-time workers less favourably simply because of their part-time status, but rather because the work performed and more particularly the responsibilities assigned are quite different and justify different rates of pay.
The Rights Commissioner in hearing the case had, in response to management’s request, dealt with the matter of there being objective reasons for the unfavourable treatment of part-time workers, as a preliminary issue and produced a preliminary finding. He rejected the employer’s argument that there were objective grounds for paying a different hourly rate to part-time employees, as compared to full-time employees.
The Rights Commissioner then went on to consider the employer’s argument that differences in pay were because of the work performed, and more particularly the responsibilities assigned were quite different. He again rejected the employer’s arguments and found for the claimant.
The Company appealed the Rights Commissioner's decision on the grounds that the Rights Commissioner;
1. Erred in law and in fact in rejecting the Company’s arguments that there were objective grounds for less favourable treatment of part-time workers.2. Erred in law and fact in failing to give due consideration to the full range of duties contained in the job description of the comparator.
(iii) In failing to find that the differential levels of pay between the claimant and the comparator was based on the greater value which the work of the comparator has for the appellant than the work of the claimant.
Company Case:
The Company case was that not withstanding its argument that the Act allowed for less favourable treatment of part-time employees, where such treatment can be justified on objective grounds, “the work performance and more particularly the responsibilities assigned are quite different and justify different rates of pay.”
On the case in relation to “objective grounds” the Company argued that the Act states that a ground will be considered as an objective ground for treatment in a less favourable manner if: -
1. It is based on considerationsother thanthe status of the employee
as a part-time worker; and2. The less favourable treatment is for the purpose of achieving a legitimate
objective of the employer; and3. Such treatment is necessary for that purpose.
It was argued that particular and exceptional circumstances do exist when considering the case of Cahill May Roberts. In 1998, a need was identified to restructure the Company so that it could react to a changing market. Extensive and prolonged negotiations were engaged in – including referrals to the Conciliation Services, the Labour Court, the Revenue Commissioners and the Minister for Enterprise, Trade and Employment. Arising out of those negotiations a comprehensive and multifaceted “package” of terms and conditions were agreed and documented.
The employer argued that it is necessary to consider whether the less favourable treatment was for the purpose of achieving a legitimate objective and whether the treatment was necessary for that purpose. The fact that the Company was certified by the Minister, on the advice of the Labour Relations Commission, it was claimed, supported the view that the agreement was necessary to accommodate change and maintain viability and leads to the conclusion that the Company’s objectives were legitimate and were necessary.
Union Case:
While the agreement entered into in 1998 was designed to deal with the situation the Company found itself in and was concluded in good faith, the Company could have achieved its objectives by other means rather than paying lower rates of pay to part-time employees.
Under Section 14 of the Act an agreement entered into is void if it purports to exclude or limit the application of the Act. Since the 1998 agreement provides for different rates of pay for full-time and part-time employees it is null and void.
In relation to the duties performed by the claimant and the comparator the differences are quantitative rather than qualitative being based on the number of hours worked.
Court Considerations:
The Court in considering the written and oral submissions has, as did the Rights Commissioner, decided to address the arguments made in relation to the issue of there being objective reasons for the unfavourable treatment of part-time workers, before going on to deal with the arguments in relation to the role and responsibilities of the claimant and the comparator.
Section 14 of the Act states:
“Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of the Act.”
The Rights Commissioner stated:
“I agree that there may have been an objective need for the Company to achieve overall control over wage costs in 1998, as they have described. The method by which they chose to achieve this goal is not necessarily an objective need, if we assume that the same goal could have been achieved in another way. I am quite satisfied that the company’s objective could have been achieved by means other than paying a lower rate of pay to part-time workers as compared to full-time workers.”
In considering the issue of objective reasons the Court must consider not only the question of whether the Company had objective reasons for the unfavourable treatment of part-time employees in 1998 but must also consider if the current arrangements continue to be appropriate and necessary and are still objectively justifiable.
The Court accepts the Company had serious problems in 1998 and that the agreement entered into was a comprehensive one that included changed terms and conditions, redundancy, compensation, red circling and changes in responsibilities assigned to particular jobs. It is clear that the agreement did not merely deal with the status of any one group of employees.
The Company has laid major emphasis on the serious difficulties it faced in 1998 when presenting its case for “objective reasons” to justify the pay arrangements in the 1998 agreement for part-time employees However, that which may have been objectively justifiable at the time of entering into an agreement, must still be objectively justifiable at the time of the bringing of a complaint.
The Court after considering at length the issues involved in this case is not satisfied that the objectively justifiable reasons for the difference in treatment of part-time workers which existed in 1998, namely that the Company faced a serious financial crisis, are still valid. The Court finds that the difference in pay between full-time and part-time workers is no longer objectively justifiable.
Therefore, the Court finds that the payment of different rates of pay for full time and part-time employees is contrary to the provisions of the Act.
The Court upholds the Decision of the Rights Commissioner on this aspect of the case and rejects this ground of appeal.
In relation to the second ground for appeal, namely that the claimant and the comparator do not perform like work, the Court now proposes to address the job content of the claimant and the comparator by means of a work inspection. When that inspection has been concluded, the Court will issue a final determination.
Signed on behalf of the Labour Court
Finbarr Flood
5th September, 2003______________________
GB/BR.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.