Ms Carol Collins and 7 named complainants (Represented by the Civil and Public Services Union) - v - Department of Finance (Represented by Ms Eileen Barrington, BL, instructed by the Office of the Chief State Solicitor)
1. REFERRAL OF COMPLAINT:
1.1 On 23 December 2002 the Civil and Public Services Union (CPSU) on behalf of Ms Carol Collins, Ms Mairead Wynne, Ms Lisa Fitzgerald, Ms Patricia Cooney, Ms Catherine Lynam, Ms Geraldine Conroy, Ms Moira Haslam, and Ms Joan Byrne, referred a complaint under Section 86 of the Employment Equality Act 1998 to me as Director of Equality Investigations.
1.2 The complaint was that the collective agreement for the civil service, namely the Programme for Prosperity and Fairness (PPF) encompassing the report of the Benchmarking Review Body, should be declared null and void in that it contains discriminatory provisions contrary to Section 9 of the 1998 Act.
1.3 In addition they alleged both direct and indirect discrimination, using as comparators male civil servants encompassed by the Programme for Prosperity and Fairness including the provisions of the Benchmarking Report, in that:
(a) the pay outcome differed substantially between male and female civil servants (named complaints) to the disadvantage of the complainants
(b) the existing pay structure in the civil service as amended by the Benchmarking Report is indirectly discriminatory on gender grounds
(c) the Report of the Benchmarking Body was not gender proofed either in respect of
a. job evaluation examples carried out
b. pay comparisons carried out.
1.4 The complaint was copied to the named respondents, the Department of Finance, on 20 June 2003 and the CPSU were informed that the investigation would commence in due course.
1.5 On 30 June 2003 the CPSU wrote to submit a named comparator in the department of Defence, who was covered by the craft Analogue Review (parallel benchmarking) Labour Court Recommendation no. 17502.
1.6 It was not considered that the case was amenable to resolution by mediation.
2 PRELIMINARY ELEMENTS OF THE CLAIM TO BE DECIDED
2.1 This decision addresses two preliminary elements of the above claim - namely the identity of the respondents and the jurisdiction of the Tribunal to hear the claim.
3 IDENTITY OF RESPONDENTS
3.1 Section 86(2)(c) of the Employment Equality Act 1998, which governs reference of collective agreements to the Equality Tribunal , states that:
'"the respondents" means the parties to the agreement, other than (where relevant) the complainants.'
3.2 Before proceeding further, therefore, it was required for me to consider who were the correct respondents to this claim.
3.3 The CPSU had initially cited the Department of Finance as the respondents to the claim. Both sides were informed on 3 July 2003 of the definition in the Act and the query that arose thereunder and I invited CPSU in particular to consider whether they wished to amend the referral form, given the number of organisations which were party to the Programme for Prosperity and Fairness. The CPSU replied on 31 December 2003 that in their view the only relevant party in respect of the collective agreement on pay for the public sector in this case is the Department of Finance acting on behalf of the Government. The issue was addressed by the respondents on 29 September 2004 as part of their overall submission on the case. They stated that the parties directly concerned with the section of the Programme for Prosperity and Fairness provided for an agreement on public service pay were the Government, the public service employers and IBEC on behalf of employers and the Public Services Committee of ICTU on behalf of unions in the public service as a whole.
3.4 The introductory overview of the Programme for Prosperity and Fairness lists the organisations who were parties to the negotiations. Those who were wholly or in part concerned with the representation of public service employers are the Government (in this case represented by the Department of Finance) and IBEC and the party who is wholly or in part concerned with the representation of public service employees is ICTU. I considered that, at a minimum, therefore it was incumbent on me to put IBEC and ICTU on notice of the complaint and to inform them of the hearing date. I indicated that I did not consider that either was obliged to take an active part in the claim unless they wished to do so or unless issues arose on which their evidence would be necessary at a later stage. Both organisations asked for copies of the relevant papers and to be kept informed of the progress of the case and this has been done. IBEC in particular pointed out the potentially significant implications given their representative role as a signatory to the PPF.
3.5 The respondents stated that there was a case to be made that all parties to the Programme for Prosperity and Fairness and Sustaining Progress should be informed of the making of the claim and heard by the Director.
4. JURISDICTION OF TRIBUNAL TO HEAR CLAIM
4.1 Section 86(1) of the 1998 Act governs the referral of collective agreements to the Tribunal for determination as to whether a provision of that agreement is null and void by virtue of section 9 of the Act.
4.2 In turn section 9 of the Act provides that in a collective agreement a provision shall be null and void if it provides that differences in rates of remuneration are based on any of the discriminatory grounds and (my emphasis) the provision conflicts with an equal remuneration term in that person's contract of employment. An equal remuneration term for like work on the nine grounds is provided for under section 19 of the Act.
4.3 Section 9 further provides that a provision in an agreement shall be null and void if it gives rise to discrimination in relation to:
a) access to employment
b) conditions of employment
c) training or experience for or in relation to employment
d) promotion or re-grading or
e) classification of posts.
4.4 The 1998 Act does not define the term "collective agreement" although this has now been defined in the Equality Act 2004 as being "an agreement between an employer and a body or bodies representative of the employees to which the agreement relates".
4.5 In this case the complainants' representative contends, and the respondent denies, that "the Programme for Prosperity and Fairness encompassing the report of the Benchmarking Review Body" constitutes a collective agreement for the purposes of Section 86 of the Employment Equality Act 1998. If it does not so constitute a collective agreement, the Tribunal does not have jurisdiction to hear the complaint.
4.6 Before investigating the substantive issues raised by the complaint, as Director I considered it essential to decide on my jurisdiction as a preliminary issue. Accordingly I held a hearing on 21 January 2005 at which I heard evidence from both the complainants' representative and the representatives of the Department of Finance. IBEC and ICTU were invited to the hearing but neither attended. Following the hearing, by agreement, supplementary submissions were received from the complainants' representatives on 14 February 2005 and the Department's representatives on 8 March. Both submissions were also copied to ICTU and IBEC.
5. Summary of evidence from complainants' representatives
5.1 The complainants' representatives set out the main grounds of their complaint. As I am not addressing the substantive nature of the complaint in this decision, I will confine my summary of their evidence to those points relating to jurisdictional issues.
Evidence in their initial submission
5.2 In their initial submission the complainants' representatives stated that, in addition to section 86 and other relevant provisions of the 1998 Act, of relevance also were Article 119 of the European Community Treaty - now Article 141 of the revised Treaty -, the Equal Treatment Directive 2002/73/EC of 23 September 2002, the Burden of Proof Directive 97/80/EC of 15 December 1997 and European Court of Justice case law in particular the Danfoss case, the Hill & Stapleton case and the Enderby case.
5.3 They made the following specific points in support of their argument that the combination of the Programme for Prosperity and Fairness and the report of the Benchmarking Body constituted a collective agreement for the purposes of this case.
? Under the Conciliation and Arbitration Scheme which constitutes the agreed negotiating machinery for the Civil Service, the general approach was for the negotiation of special pay increases every 4 to 5 years to take account of movements in comparable employments elsewhere which have been affected by productivity agreements etc.
? Under the Conciliation and Arbitration Scheme or through Arbitration since the 1950s, Clerical Officer (CO) and other key grades have had their pay rates increased through special "catch up" agreements by reference to agreed analogues. Such pay increases took place in 1955, 1961, 1964, 1968, 1973, 1979, 1980/81, 1982, 1988 (increase of 8%) and 1995 (increase worth 10% including amalgamation of CA/CO grades).
? The combined arrangements for each special pay round constitute the collective agreement for the civil service under the umbrella of the specific national social partnership agreement.
? Citing the terms of reference of the Benchmarking Body which looked at agreed key grades - existing roles, duties, responsibilities etc. not just pay rates in similarly-titled grades
? Therefore the outcome of the Benchmarking Report for the civil service constitutes a collective agreement under the two national programmes that they have spanned (Programme for Prosperity and Fairness which covered setting up and reporting of the Body and Sustaining Progress which covered the implementation of its recommendations on a phased basis).
5.4 While accepting that there are many other parties to the two partnership agreements, the complainants' representatives contend that the pay terms of the agreement are agreed between ICTU and IBEC for the private sector and ICTU and the Department of Finance for the public sector and that the Benchmarking report constituted a separate collective agreement for the civil service. They argued therefore that there was no need to consider other parties as respondents in the claim.
6 Evidence presented at the hearing
6.1 The complainants' representatives explained that their initial reference of the case did not cite the parallel benchmarking process as that had not then been completed and they considered it better not to wait to lodge the claim because of concerns about time limits for equal pay cases.
6.2 The CPSU said that they were not suggesting that the Public Sector Benchmarking Report was a collective agreement as its recommendations were not mandatory and were dependent on a decision by the civil service to implement. However they considered that the outcome imported additional discrimination for female grades.
6.3 They gave a number of differing definitions at various stages of the collective agreement being referred, as follows:
- the outcome of the complete set of negotiations,
- the implementation of the benchmarking report plus the Programme for Partnership and Prosperity and Sustaining Progress, and
- they considered that their implementation within the civil service became a collective agreement overseen by the Performance Verification Group covering craft and general service grades.
6.4 They stated that the benchmarking report in itself was not a collective agreement but that collective agreement arose when the benchmarking report was accepted and implemented.
6.5 During the hearing, as an aid to determining what was the collective agreement being referred, the complainants' representatives were asked to identify the provision which they wished to have declared null and void in accordance with section 86 of the 1998 Act.
6.6 At the hearing the complainants' representatives did not identify any specific provision to be set aside but were rather seeking to set aside the percentage increases for Clerical Officers and achieve an improved rate of pay. They stated they were asking to have set aside the totality of the benchmarking report in respect of the civil service, but they stated very clearly that they were not suggesting that the Programme for Partnership and Prosperity or Sustaining Progress should be declared null and void. They were not seeking to set aside awards made for other grades but merely the discriminatory outcome and application to the CO grade.
6.7 They suggested that it was for the Director to decide what provision should be set aside and that if there was no option they would recommend setting aside the whole report.
6.8 They clarified that in relation to their claim of indirect discrimination the practice they complained of was preferential treatment given to, and the application of different rules for, the parallel benchmarking process because of the smaller number of analogues and the lack of gender proofing of the pay survey/job evaluation carried out by the benchmarking body. They also commented that the overall craft group in the civil service was predominantly male, although this was not necessarily the case for the public sector craft group which also included non-nursing predominantly female grades. They strongly argued that in any event a comparator was not required, citing Hill & Stapleton as an example of a case where the European Court of Justice looked at whether the provision affected women more as a grade because of their gender rather than seeking to identify like work or a direct comparator.
6.9 In response to questions, the complainants' representatives denied that they had changed their position on what had been referred, although they did agree to clarify more precisely the context of the complaint.
6.10 In relation to the question as to whether a collective agreement could be discriminatory if it awarded percentage increases rather than set absolute pay rates the complainants' representatives strongly asserted that any pay agreement contains provision for a percentage increase and it could not be acceptable that because the award was couched in percentage terms it was not a collective agreement.
6.11 At hearing the claimants' representatives stated that he wished to raise the job classification system as covered in section 8(1)(e). This was not addressed in the supplementary submission as it was not directly relevant to the preliminary issue of jurisdiction.
7 Evidence presented in their supplementary submission
7.1 The complainants' representatives argued that as Director I should take the widest possible interpretation of what constitutes a collective agreement to ensure that gender discrimination is not being practised through a collective bargaining system. In particular they cited Article 4 of the Directive on Equal Pay 75/117, with direct effect for civil servants, which provides for member States "to take the necessary measures to ensure that provisions appearing in collective agreements, wage scales, wage agreements or individual contracts of employment which are contrary to the principle of equal pay shall be, or may be declared, null and void or may be amended." They also pointed to the ECJ decision in Enderby as a milestone in ensuring that collective bargaining procedures and industrial relations practices are fully in conformity with national and European equality provisions.
7.2 They accepted that in themselves the partnership agreements Programme for Prosperity and Fairness and Sustaining Progress do not constitute a collective agreement.
7.3 They clarified their view that, in the context of section 86, the collective agreement should be viewed as the application of the Programme for Prosperity and Fairness and Sustaining Progress with both the main Benchmarking and parallel Benchmarking Reports as applied in civil service departments to both categories of workers. They considered that, if separate collective bargaining outcomes could be applied in a single Government Department, the Act could be subverted in respect of its intention to outlaw discrimination, and furthermore that both sets of awards, Benchmarking and parallel Benchmarking, were processed through the same Performance Verification Group.
7.4 Further elucidation of their evidence, and some additional arguments, were submitted to me as follows:
- Section 24 Part IV Miscellaneous of the Organisation of Working Time Act 1997 gives guidance as to what constitutes a collective agreement. While accepting that the Programme for Prosperity and Fairness and Sustaining Progress in themselves did not constitute a collective agreement, they constituted framework agreements which the parties had agreed to adopt and were converted into collective agreements in the individual employments or sectors.
- They stated that General Council Agreed Reports, and in particular that Report no. 1424 which provides for the application of Sustaining Progress and of Benchmarking to civil servants covered by the Conciliation and Arbitration Scheme, were clearly collective agreements and clearly applied the benchmarking awards to civil servants.
- The relevant agreement was the application of the special pay awards under Sustaining Progress within Government Departments rather than within the public service generally. In this connection the CPSU pointed to the wide range of bodies within the public service with differing terms and conditions and differing grades and salary structures, stating that it could not therefore be considered that there was a common collective agreement across the public service as a whole.
7.5 To assist me further in considering what was the collective agreement being referred, I asked the complainants' representatives to identify in their supplementary submission the precise provisions of the agreement which they requested me to declare null and void in accordance with section 87 of the 1998 Act and on which they were requesting guidance to the parties to the agreement as to how alternative or amended provisions might be devised which would be lawful to include. In their response no precise provision was identified. Points made in their response are summarised below:
- They were seeking that the discriminatory provisions in respect of the outcome of the collective agreement would be set aside and replaced with non-discriminatory provisions.
- They expected this to provide a more favourable outcome for the complainants.
- They were not supposing that the terms of the agreement in so far as they involved monetary awards to the claimants be set aside and not replaced.
- It was a matter for the Director to consider whether it would be difficult to redress the discriminatory provisions without affecting the entire application of the agreement.
8 Evidence provided by the respondent's representatives
8.1 The respondents' representatives challenged the validity of the claim on a number of grounds and set out the main grounds of their defence. As I am not addressing the substantive nature of the complaint in this decision, I will confine my summary of their evidence to those points relating to jurisdictional issues.
Evidence in their initial submission
8.2 The respondent's representatives outlined the history and terms of reference of the Benchmarking Body. They stated that the Body's report formulated a cohesive overall set of recommendations on public service pay taking into account the full range of considerations referred to in their terms of reference. Their recommendations had the effect of severing all previous pay links and establishing new absolute levels of pay for each grade. The Report itself made recommendations only but it was agreed under an adjustment to the Programme for Prosperity and Fairness in December 2000 that 25% of any increase arising from the Report would be paid with effect from 1 December 2001. This adjustment also provided that the same provisions would apply in the case of parallel arrangements for craft workers. Subsequently the successor agreement, Sustaining Progress, provided that 50% of the increases would be paid with effect from 1 January 2004 and the remaining 25% from 1 June 2005, subject to satisfactory performance (their emphasis).
8.3 The respondents' representatives noted that it seemed clear, from the redress sought by the complainants, that what was being challenged was the recommended increases in pay and considered therefore that it was the Benchmarking Body's report, rather than the partnership agreements, which constituted the collective agreement for the purposes of this complaint.
9 Evidence presented at hearing
9.1 The respondent's representatives referred on several occasions to the varying wording and lack of clarity of the collective agreement which had been referred and stated that the implementation of the report in itself could not be a collective agreement. If there were a collective agreement, it must be the Programme for Prosperity and Fairness and Sustaining Progress.
9.2 They stated they were also unclear as to the redress sought. They considered that, where a pay increase was ruled null and void, pay levels would revert to pre-benchmarking levels. They argued that the specific provision which was allegedly discriminatory must be identified.
9.3 The respondent stated that they could not accept that there was any collective agreement requiring implementation of the benchmarking report increases in the civil service alone - it was applied equally to the public service as a whole and there was no separate agreement or implementation terms for the civil service. Section 19 of Sustaining Progress gave authority for all benchmarking increases.
9.4 The respondent also strongly denied the relevance of the Performance Verification Group, and stated that there different PVGs for the various sectors, whose only role was to assess whether sufficient progress had been made to satisfy the conditions for payment of increases. The PVGs had no relationship to the benchmarking process per se and therefore could not be taken as evidence of a separate agreement on benchmarking in the civil service.
9.5 In relation to the question of the applicability of the Act in relation to collective agreements covering percentage increases rather than absolute rates of pay, they stated their view that the 1998 Act was predicated on comparisons between an individual worker or group of workers and an individual comparator or group of comparators.
10 Evidence presented in their supplementary submission
10.1 The respondents' representatives considered that the Director was prevented from taking a broad approach to the consideration of the complaint by the mechanisms put in place by the 1998 Act, although such mechanisms would not prevent the bringing of a direct discrimination complaint under the individual provisions of the Act.
10.2 The respondents' representatives considered that the complainants' representatives were now contending that the collective agreement being sought to be challenged was the agreement set out in the Civil Service Conciliation and Arbitration Scheme General Council Report 1424 and the parallel benchmarking exercise represented by Labour Court Recommendation 17502. They referred to the acknowledgement that this argument did not fully account for how the parallel benchmarking process was incorporated into the collective agreement.
- They pointed in particular to the relevance of the definitions of collective agreement in the Organisation of Working Time Act 1977, the Anti-Discrimination (Pay) Act 1974 and the definition inserted into the 1998 Act by the Equality Act 2004 and the provisions of Section 86(1), 86(2)(b) and Section 9(1)(a) of the 1998 Act, which they sum up as a collective agreement that, for the purposes of this claim, governs remuneration.
- They argued that an agreement capable of being referred under Section 86 was an agreement to which there was one set of parties. They contend that what had been referred is two separate collective agreements with different sets of parties. The parties to the Labour Court Recommendation were Local Authority and Health Service Employers (represented by LGMSB and the HSEA) and local authority and health service unions (represented by ICTU craft group of unions). The parties to the General Council report were the representatives of the staff side of the Civil Service Conciliation and Arbitration Scheme and the representatives of the official sides in that Scheme. They also pointed out that each of these related to rates of increases rather than rates of remuneration.
- Furthermore the General Council Report was a formality under the Conciliation and Arbitration Scheme in that the parties did not negotiate the increases themselves (which were recommended by the Benchmarking Report) or the phasing of them within the Civil Service (which were agreed in the context of the Programme for Prosperity and Fairness and Sustaining Progress). It did not contain an agreement in relation to the benchmarking exercise and referred only to "the arrangements in regard to payment of the benchmarking increases".
- The Report did not cover groups covered by the parallel benchmarking exercise.
- The Report was adopted more than four months after the referral of the complaint.
- The respondents' representatives reiterated that the Benchmarking Body's terms of reference required it to take account of the differences between various public service groups within its remit (which did not include the parallel benchmarking exercise) and there was neither a separate benchmarking exercise nor a separate agreement for the civil service.
- The respondents' representatives did not accept the relevance of the Performance Verification Group (PVG) to the interpretation of what constituted the collective agreement, in that the PVG's role was solely to verify that the conditions for payment have been met and they had no involvement in negotiations in relation to the benchmarking exercise.
11 Evidence in relation to Redress sought
11.1 The respondents' representatives considered that the redress sought was not one that was available within the Act.
- The discriminatory provisions under consideration had not been identified.
- The Director had no power to provide for the replacement of the impugned provisions by non-discriminatory provisions.
- Even if the Director could put aside the 8.5% increase for clerical officers, which would leave them with no increase, she has no power to require the Minister for Finance and the CPSU, acting outside the benchmarking process or the partnership agreements, to agree a different rate of increase.
- Only if the Director considered it appropriate would she go on to provide to the guidance to the parties on the means to devise alternative or amended provisions
- It was essential to identify the parties to the agreement in order, where appropriate, to provide them with guidance. There were different parties to the General Council Report and Labour Court Recommendation, and these in turn were different to the parties involved in the partnership agreements.
- They pointed to the acknowledgement by the complainants' representatives that "it would be difficult to redress the discriminatory provisions without affecting the entire application of the agreement."
12 CONCLUSIONS OF THE DIRECTOR
12.1 I have carefully reviewed all the evidence presented to me in this case.
12.2 In considering the nature of the collective agreement which may be referred to me under section 86 of the Employment Equality Act 1998, I am mindful of the lack of any definition of collective agreement in that Act. I also take into account the provisions of Article 4 of the Equal Pay Directive (75/117) which covers provisions appearing in collective agreements, wage scales, wage agreements or individual contracts of employment. I consider therefore that the term collective agreement in the 1998 Act is capable of a very broad definition and is not, for example, constrained by a requirement that bodies representative of employees should be licensed under the Trade Union Act 1941 or be an excepted body. I am encouraged in this conclusion by the fact that the Equality Act 2004, which inserts a definition of "collective agreement", does not insert such a requirement. I therefore take a broad view of the nature of a collective agreement referred to me.
12.3 However, there are considerable difficulties in identifying the collective agreement which has been referred.
12.4 I note that several varying descriptions have been put forward by the complainants' representatives, both in their submissions and at the hearing. Broadly speaking they refer to the Public Sector Benchmarking Report in the context of the Programme for Prosperity and Fairness and of Sustaining Progress.
12.5 The complainants' representatives explicitly stated their view that the Programme for Prosperity and Fairness and Sustaining Progress did not constitute collective agreements. While they may have been influenced in that approach by the Organisation of Working Time Act 1997 (which requires the employees' representative to hold a negotiation license under the Trade Union Act 1941 or be an excepted body within the meaning of that Act, before a collective agreement can be approved by the Labour Court), they also describe the two programmes as framework agreements and at no stage have they suggested that they are challenging any of their provisions.
12.6 I note further that in Sustaining Progress, which sets out the agreement on acceptance of the Benchmarking Body's Report and the national partnership agreements, section 19 contains the relevant provisions.
- Sections 19.19-19.22 cover the phasing of the increases and the necessary verification of satisfactory achievement of specific performance conditions.
- Section 19.23 provides for similar conditions to be applicable to the Craft Parallel benchmarking process and related processes for non-nursing grades and general operatives.
- Sections 19.24 and 19.25 set out the acceptance of the parties of the benchmarking process as an appropriate way of determining public service pay rates in the future. I note that this includes an acceptance of the Benchmarking Body's recommendations as "severing all previous pay links and establishing new absolute levels of pay of each of those grades." None of these provisions has been challenged as discriminatory by the complainants' representatives.
12.7 I consider therefore that neither the Programme for Prosperity and Fairness nor Sustaining Progress can be the collective agreement referred by the complainants' representatives as containing discriminatory provisions.
12.8 I must therefore consider whether the Public Service Benchmarking Report could constitute a collective agreement within the meaning of the 1998 Act.
12.9 The complainants' representatives specifically state that the Public Service Benchmarking Report is not a collective agreement in itself. While the Benchmarking Body's members included 3 individuals who were or had been officials from bodies representative of employers and of trades unions, it was chaired by a High Court judge and included 3 individuals who were not from employer organisations or trade unions. Its terms of reference and modus operandi were very different from those involved in collective bargaining. Its Report does not represent an agreement between employers or their representative on the one hand and employees or their representatives on the other hand. It contains a set of recommendations which are not mandatory and as thus cannot be regarded as governing the remuneration of employees, within the meaning of section 86(2)(b) of the 1998 Act. Overall I do not consider that the Report is in itself a collective agreement within the meaning of the Act.
12.10 The complainants' representatives argue that it is a combination of the two, the Benchmarking Body's recommendations as implemented in the national agreements, which constitute the collective agreement. This is strongly contested by the respondent's representatives.
12.11 I have looked at the wording of the 1998 Act, which refers in section 86 to "a collective agreement" and which in section 87 provides that it is the purpose of my investigation to decide which if any of the provisions are null and void by virtue of section 9 of the Act. This, in my view inescapably, envisages that both that the collective agreement is clearly defined and that it contains provisions which may be deemed to be discriminatory and therefore null and void.
12.12 European case law, to which I was referred by both parties, gives little further guidance on this matter. Without straying into the substantive aspects of the case, it is important to note furthermore that the comparator is covered by a different pay determination process, the craft parallel benchmarking process as distinct from the public service benchmarking process. In the Danfoss case (C109/88), which was raised before me, the European Court of Justice did not answer the question as to whether two separate collective agreements, applying essentially to male and female employees respectively, are excluded from the application of the Equal Pay Directive. Some guidance can be obtained from Enderby (C127/92) which clarified that the fact that the rates of pay at issue were decided by collective bargaining processes, conducted separately for each of the two professional groups concerned, did not preclude a finding of prima facie discrimination where the results of those processes show that two groups with the same employer and the same trade union were treated differently (my emphasis). They explained that if the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay he could easily circumvent the principle of equal pay by using separate bargaining processes. Enderby however differs from the present case: in this case, the complainants' representatives are inter alia seeking to compare the outcome of two different agreements, between different employer groups and different trades unions.
12.4 Finally, in considering whether the complaint does refer to a collective agreement referred within the scope of section 86 of the 1998 Act, it is useful to look at the stated purpose of section 87. That section states that it shall be the purpose of a decision of the Director to identify which (if any) provisions of the agreement are null and void by virtue of section 9. To do this, I consider that a specific provision in a collective agreement must be identified which could be regarded as directly or indirectly discriminatory.
12.5 I consider it extremely significant that the complainants' representatives have been unable to point to any specific provisions as containing discriminatory material. They refer to their general grievance that the Benchmarking Body did not undertake a transparent process of gender proofing of either job evaluation or pay comparisons as part of their pay survey and to their general grievance that the pay outcomes differed substantially between male and female civil servants. They do not point to any specific provisions liable to being construed as discriminatory. My own examination of the two national pay agreements and the Benchmarking Body's report has not resulted in identification of any specific provision.
12.6 I note furthermore that the complainants' representatives seek that the (unspecified) discriminatory provisions be set aside and replaced with non-discriminatory provisions. They anticipated that the outcome from the claimants' point of view would be more favourable. They state that they are clearly not supposing that the terms of the agreement, insofar as they involve monetary awards to the claimants, be set aside and not replaced. They accept that it would be difficult to redress the discriminatory provisions without affecting the entire application of the agreement.
12.7 I would emphasise that my powers are limited to consideration of the provisions of a collective agreement duly referred under section 86 of the Employment Equality Act 1998. The complainants' representatives were however unclear as to the collective agreement being referred and were unable to identify any specific provisions which might be considered discriminatory.
12.8 It is also useful to consider my powers of ordering redress. These powers are restricted. The only power I have is the power to declare one or more specific provision(s) to be null and void, and if I think appropriate to give guidance on how to devise alternative provisions. I have no power to replace the provisions with other non-discriminatory provisions nor do I have power to make it mandatory to comply with any guidance I consider appropriate. This means I have no power to direct that the level of monetary award to the claimants be varied.
13 DECISION OF THE DIRECTOR
13.1 The complainants' representatives have not succeeded in persuading me that they have validly referred a collective agreement under section 86 of the Act.
13.2 I deem therefore that the complaint is outside the terms of the Act and therefore I have no jurisdiction to investigate further.
Melanie Pine
Director
30 September 2005
APPENDIX
Complainants named in initial complaint
Carol Collins, Central Statistics Office, Cork
Mairead Wynn, Department of Foreign Affairs, Dublin
Lisa Fitzgerald, Garda Natrional Immigration Bureau, Burgh Quay, Dublin 2
Patricia Cooney, Department of Communications, Marine & Natural Resources, Nassau Street, Dublin 2
Catherine Lynam, Department of Foreign Affairs, Harcourt Street, Dublin 2
Geraldine Conroy, Department of Agriculture and Food, Galway
Moira Haslam, Department of Social and Family Affairs, Store Street, Dublin 1
Joan Byrne, Garda Training College, Tipperary