FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : AOSDÁNA (REPRESENTED BY BEAUCHAMPS SOLICITORS) - AND - SEAN CLIFFORD (REPRESENTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Act, 1998 - DEC-E2004-046
BACKGROUND:
2. A Labour Court Hearing took place on the 15th February, 2005. The following is the Courts' Determination:
DETERMINATION:
The complainant referred a complaint under the Employment Equality Act, 1998 to the Director of Equality Investigations (the Equality Tribunal).
His complaint was investigated by an Equality Officer who found that he had been discriminated against on grounds of his age, within the meaning of section 6(2)(f) and in contravention of section 13 of the Act, when Aosdana informed him that he must be 30 years of age to be eligible for membership of that body. The Equality Officer awarded the complainant compensation in the amount of €2,500. It is against that decision that the respondent appealed to this Court.
By agreement between the parties the only issue, which the Court is required to determine, is whether Aosdana is a “professional organisation” within the meaning of section 13 of the Employment Equality Act, 1998 (the Act).
The Complainants Case
Mr. Sean Clifford (the complainant) brought a complaint against Aosdana (the respondent) alleging that he suffered discrimination on the age ground.
In October 2001 the complainant made enquiries about membership of Aosdana and was informed that membership was restricted to persons over 30 years of age. The complainant was 26 years of age at the material time and accordingly could not avail of the benefits, if any, of being a member of Aosdana. He contends that Aosdana is a professional organisation within the meaning of Section 13 of the Act and that by refusing him entry on the grounds of age, it has discriminated against him in breach of section 6 (2) (f) of the Act.
Ms. Maguire,Counsel for the complainant submitted that the 1998 Act does not merely apply to employer – employee relationships but also relates to a broad spectrum of relationships including, the relationship between an individual and certain bodies. Shesubmitted that the first rule of statutory construction requires that the words be given their ordinary plain and literal meaning and that this interpretation should be applied unless it gives rise to an absurd or incongruous result.The words “professional or trade organisation”should be given their ordinary and literal meaning. Counsel citesInspector of Taxes v Kirwan [1981] IR 117
- “When the word which requires to be given its natural and ordinary meaning is a simple word which has a widespread and unambiguous currency, the judge construing it should draw primarily on his own experience of its use. Dictionaries or other literary sources should be looked at only when alternative meanings, regional usages or other obliquities are shown to cast doubt on the singularity of its ordinary meaning, or when there are grounds for suggesting that the meaning of the word changed since the statute in question was passed”
and also citesCork County Council v Whillock[1993] 1 IR 231 in which O’Flaherty J characterised this rule in the following terms:
- “the first rule of construction requires that a literal construction must be applied. If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences”.
Ms. Maguire contended that the term “professional or trade organisation” is to be interpreted as meaning an organised body of persons engaged in a vocation or calling and she cited the Concise Oxford Dictionary’s definition of “profession” as meaning“a vocation or calling, esp. one that involves some branch of advanced learning or science (the medical profession)”and “organisation” as meaning “an organised body, esp. a business, government department, charity etc.”
Counsel contended that the word “professional” denotes something or someone connected with or belonging to a profession, which in turn means an occupation involving some branch of advanced learning, education or training.
The word “trade” denotes an occupation involving a skill or craft of a physical nature, which is acquired over a number of years of apprenticeship.
The word “organisation” denotes a body comprising of a number of people pursuing a common goal or objective, structured in a hierarchical manner, headed by an individual or group of individuals and governed by a system of rules or regulations.
Ms. Maguire contended that if the Act were about controlling entry to a profession then Section 13 (b) would have been superfluous. She stated that Aosdana, far from being a loose or casual body, is a highly organized organisation, which has a legal identity. Membership of Aosdana facilitates access to employment/career opportunities. She stated that it does lobby. ItsCnuasfacilitates struggling artists to fill in the lacuna between jobs. She stated that the benefits of theCnuasand the pension clearly means that Aosdana falls within the scope of section 13 (b). Financial benefits flow from membership alone. She pointed out that 75% of members have at some stage being in receipt ofCnuasand it is not a prerequisite for a body falling within the definition in 13 (b) to have rules of expulsion.
She submitted that Aosdana is a body which confers benefits upon its members, up to and including pension rights and this supports the view that it is a “professional or trade organisation” within the meaning of section 13 of the Act.
In addition the complainant disputed the level of compensation awarded by the Equality Officer and sought an improvement in that award.
The Respondent’s Case
The respondent rejects the contention that Aosdana is a body as described within section 13 of the Act. They state that the complainant is not entitled to bring a claim under the Act, and do not accept the construction placed by the complainant on section 13 of the Act.
The Respondent submits that Aosdana is ‘an honour system’ which does not effect the carrying on of any artistic profession, training or occupation and was set up to honour those artists whose work has made an outstanding contribution to the arts in Ireland and to encourage and assist them in devoting their energies fully to their art. The primary requirement for eligibility is that the artist must have distinguished himself or herself by the excellence of his/her art.
Members of Aosdana are eligible to apply for acnuasor grant from the Arts Council to assist in concentrating their energies in the full time pursuit of their art.
The respondent is of the view that section 13, particularly when read in conjunction with section 6, makes clear that the bodies described in the section must not discriminate against a person in relation to membership of a body which relate to entry to or the carrying on of that profession, vocation or occupation. It also submitted that it has no role in relation to providing a negotiating forum for terms and conditions of employment or engagement of artists, it has no role as a lobby group, advisor, negotiator or any industrial relations matters and membership or otherwise of Aosdana in no way inhibits any person from entering into or carrying on any trade or profession.
Ms. Kimber, Counsel for the respondentmaintained that the term“ a professional or trade organisation”in section 13 (b),cannot be interpreted entirely out of context, so as to have an effect of applying the Act to any organisation.She cited Collins English Dictionary“professional association”as meaning“a body of persons engaged in the same profession, formed usually to control entry into the profession, maintain standards, and represent the profession in discussions with other bodies”.
Ms. Kimber maintained that Aosdana was the Irish equivalent to the Pulitzer Prize; members are elected to Aosdana in order to be honored. She said it was merely a structure within the Arts Council with administration being conducted by the Arts Council (i) to disperse fundsCnuas(a grant paid for five years); (ii) to provide an honorary award (Saoi)(of which there are no more than five at any time); and (iii) to contribute to a pension for those who require it. Ms Kimber makes the point that it would be unworkable for Aosdana to be subjected to the Employment Equality Act, 1998. Aosdana is by its very nature subjective. Like the Nobel Prize, it is elitist, it includes some, excludes others.
Mr. Johnson, Artistic Services Manager of the Arts Council and Registrar with Aosdana stated that Aosdana has no employees. He stated that membership is only available to those who are nominated to join. Aosdana has no role in the setting up codes of conduct for artists; it does not negotiate salaries or commission on behalf of its members. He stated that it is not necessary to become a member of Aosdana to become an artist and that 50% of members have never sought theCnuas. He stated that the ‘pension’ is not an occupational pension but an annuity paid to those members who have opted to contribute to it. Aosdana does not have the power to sanction any of its members for any misdemeanor. He stated that there was no empirical evidence that membership enhances anyone’s career and that it is not seen as a particularly strong accolade to be a member. Aosdana has an average of four applicants per year.
He stated that Aosdana’s members are artists who have pursued their respective professions in literature, music, painting and sculpture and have excelled in them. Membership is conferred following a stringent nominations and selection/electoral process; members may receive a special award known asSaoi;members are entitled to apply for a financial grant (Cnuas) consisting of an annuity for five years. It seeks to impact or inform policy in respect of areas of Irish arts in an effort to benefit its members and Irish artists in general. Therefore, it is an affiliation of artists who are engaged in literature, music and the visual arts.
The respondent advised the Court that since 1st January 2003, the prerequisite that applicants must be at least 30 years of age no longer applies.
In essence the respondent submits that as a body which confers the benefit of artistic recognition on artists Aosdana is not a professional or trade organisation within the meaning of section 13 of the Act.
Court Findings
Section 13 of the Act applies the principles contained in the Act to the entry into and membership of certain bodies. It states:
A body which -
(a) is an organisation of workers or of employers,
(b) is a professional or trade organisation, or
(c) controls entry to, or the carrying on of, a profession, vocation or occupation,
shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation.”
It is obvious that Aosdana does not come within the definitions contained in section 13(a) and (c). The only question the Court must answer is whether Aosdana is a professional or trade organisation within the meaning of section 13 (b) of the Act. Both parties referred the Court to dictionary meanings of the words “professional association”, “profession” “trade” and “organisation”.
Counsel for the complainant submitted that the word ‘organisation’ denotes a body comprising of a number of people pursuing a common goal or objective, structured in a hierarchical manner, headed by an individual or group of individuals and governed by a system of rules or regulations. She submits that far from being a loose or casual body Aosdana is a highly organized body, which has a legal identity.
In its information brochure, Aosdana is described as an affiliation of artists engaged in literature, music and visual arts. It was established by The Arts Council in 1983 to honour those artists, whose work has made an outstanding contribution to the arts in Ireland, and to encourage and assist them in devoting their energies fully to their art.
Membership consists of not more than 200 artists who have distinguished themselves by the excellence of their art. A maximum of five new members may be elected per year. It is a self regulated body which meets on average once a year to elect a supervisory board; to vote in new member; to elect a Saoi (a special award restricted to a maximum of five recipients at any one time which is conferred by the President following a ballot of members); to review the affairs of the association and to discuss issues relevant to the status of the artist and the arts in society.
The Court does not accept that Aosdana is a body which is structured in a hierarchical manner. It has no employees. It is administered by the Artistic Services Manager of the Arts Council. It’s address and telephone numbers are those of the Arts Council. It is not governed by a system of rules or regulations – its rules of membership are designed to limit membership to those artists whose work has made an outstanding contribution to the arts in Ireland. It has no regulations as such, it has no codes of conduct, it imposes no sanction on its members, and it does not expel members. It does not represent member’s interests. It has made statements to the relevant authorities on matters relating to the arts, but these statements have not been in relation to its members specifically. Its objective isto honour those artists in its membership and to encourage and assist them in devoting their energies fully to their art. It has no corporate legal identity. Therefore, the Court is of the view that Aosdana does not come within the definition of “organisation” as defined above.
Counsel for the complainant submitted the word “professional” denotes something or someone connected with or belonging to a profession and submitted that the word means “a vocation or calling, especially one that involves some branch of advanced learning or science”.
The Court is of the view that the members of Aosdana are unlikely to have been involved in some branch of advanced learning or science, but would be more likely to have had a natural aptitude for their respective disciplines. While this aptitude may have been “developed, honed and updated over time through dedicated learning or training” especially with the assistance of aCnuas, the Court is satisfied that this is not the role or objective of Aosdana.
The Court accepts that Aosdana is not an organisation furthering the interests of artists, it does not set out rules of conduct nor govern any professions, and has no role in assisting members to seek employment. The Court accepts the respondents description that it is an ‘affiliation’ of artists which confers the benefit of artistic recognition on those select artists who have been elected into membership.
It is accepted by both parties that Aosdana is not an organisation of employers and workers, nor is it a body, which controls entry to, and the carrying on of the profession, vocation or occupation. The Court accepts that those artists who are not members of Aosdana are not precluded from practicing in their own particular artistic field. Contrast this with membership of certain bodies for other professionals where it is a defacto requirement to be a member of the body representative of that profession, e.g. membership of the Bar Council for barristers, membership of the Institute of Chartered Accountants in Ireland for chartered accountants etc. This, in the Court’s view is an example of the “ordinary plain and literal meaning” of the words “professional or trade organisation”as contained in section 13(b).
The complainant strongly contended that the fact that Aosdana can confer certain benefits upon its members, including pension rights supports the view that it is a “professional or trade organisation” within the meaning of section 13 of the Act. In the Courts view, this argument may only arise if the body in question is firstly a professional or trade organization. There are a substantial number of bodies membership of which may confer benefits in relation to a persons trade or profession. However, in the Courts view a Professional or Trade organization is intended to mean a body which has the power to substantially affect the ability of any person to practice in his or her day to day trade or profession. By no stretch of the imagination could Aosdana be said to be such a body.
The Court accepts that the Act goes beyond an employer-employee relationship as it specifically provides for a relationship between an individual and certain bodies. However, these words cannot be taken in isolation and this extension must be considered in the context of discrimination in, and in connection with employment.
Counsel for the complainant stated that the directive on which the Act is based, Directive 76/207/EEC, prohibits discrimination on the grounds of sex not only in relation to the employee/employer relationship but also “in rules governing independent occupations and professions”.
The Court is of the view that the objective of the Act is to make provision with respect to discrimination in, and in connection with employment. It is a development of the EU Directives on Equal Pay between Men and Women and Equal Treatment Between Men and Women, both of which relate to employment situations. While the 1998 Act extended these grounds, it does not change the fundamental principle of avoidance of discrimination in, and in connection with employment.
Determination
The only issue for determination by the Court, is whether the complainant is entitled to bring a complaint against the respondent as “a professional or trade organisation”within the meaning of section 13(b) of the Employment Equality Act, 1998.
For all the reasons outlined above the Court does not accept that Aosdana is a body covered by section 13(b) of the Employment Equality Act, 1998 and therefore finds that the complainant is not entitled to bring a complaint against the respondent under the Act.
Accordingly, the Court upholds the respondents’ appeal and the Equality Officer’s decision is overturned.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd April, 2005______________________
AH/MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.