EDA073

Background:

The CPSU (the Respondent) made equal pay claims on behalf of 25 named females employed by the Irish Aviation Authority (the Appellant). The claims were made under the Anti-Discrimination (Pay) Act, 1974 (The 1974 Act) and cover a period both prior to and subsequent to 18th October 1999, the date of coming into the operation of the Employment Equality Act, 1998. Section 106 of that Act made provisions for the investigation under that Act of cases taken under the 1974 Act which were pending on 18th October 1999.

This appeal is from a Decision of the Equality Officer on a preliminary point.

Section 2(1) of the 1974 Act states that

“It shall be a term of the contract under which a woman is employed in any place, that she shall be entitled to the same rate of remuneration as a man who is employed in that place by the same employer (or by an associated employer if the employees, whether generally or of a particular class, of both employers have the same terms and conditions of employment) if both are employed on like work”.

The Complainants are based in Dublin City, Dublin, Cork & Shannon Airports and Ballygirreen, Co. Clare. Comparators are named in all these locations except in the Dublin City Head Office. As a preliminary issue the Respondent contended, that as both Complainants and comparators were employed in these various geographical locations, they could not be deemed to be employed in the same place within the meaning of Section 2(1) of the 1974 Act.

In her Decision on this point, the Equality Officer found that the complaint was valid under the Act and nothing in that Act, having regard to the effect of Article 119 (now 141) of the Treaty and the Equal Pay Directive No 1975/117/EEC, should be interpreted as restricting a claim by a named complainant against a valid comparator employed by the respondent in the same location.

The Irish Aviation Authority appealed the Decision to the Labour Court on the 22nd March 2006. A Labour Court hearing took place on 8th November 2006.

Appellant’s Arguments:

1.Irish Law

(a) Section 2(1) of the Act requires that a claimant and a comparator be employed by the same employer and in the “same place”. While the definition of “place” under the Act is not extensive, it is deemed to include “a city, town or locality”. While under this definition, the appellant accepts that Dublin Airport and Dublin City can be considered the “same place” as can Shannon Airport and Ballygirreen, this would not apply to Dublin or Shannon vis-�-vis either Cork or each other.

• In support of this contention the Appellant quoted a number of authorities:
  

• 
  In that case the appellant contended that at a time when the Equal Pay Directive 75/117/EC was in force, the Labour Court upheld an Equality Officer’s findings that the definition of “place” could not include the entire State and in particular Sligo and Portlaoise (approx 110 miles apart) could not be considered the same place for the purpose of the Act. The Court stated: -
  
  “Place” must mean something less than the entire State as otherwise the confinement of the Act to persons working in the same place and the definition of “place” as including a town, city or locality would be pointless”.
  
  Also in that case the Court, specifically rejected the argument that just because rates of pay (or other conditions) were determined at national level, without regard to where employees worked, that this could take precedence over the “same place” requirement under the Act. “Place could not be regarded as a pay negotiation area” within the meaning of the Act without regard to geographical proximity.
  

• 
  In that case the meaning of “same place” also arose as the Company had plants both in Kildare and Roscommon. The Equality Officer decided that Kildare and Roscommon were not the “same place” and the fact that salaries were centrally determined made no difference. The Equality Officer observed that to adopt the approach that Kildare and Roscommon were the “same place” would put “a decidedly strained construction on the clear meaning of the Act".

• 
  In that case also the Equality Officer decided that Cork and Dublin were not the “same place” for the purpose of the Act.
  • 
    The Appellant also contended that in his preliminary Decision, the Equality Officer referred to a Seanad Debate in 1974 on a proposed amendment to delete the word “locality” from the definition of “place” in the Bill (later Act). The amendment was withdrawn but the Minister said,inter alia,

• • • • “What is envisaged here is the paying locality and it would be a recognisable jurisdiction in industrial relations procedure. I accept that it is not capable of strict legal interpretation Our idea is that it should be the one paying region. One cannot be explicit in industrial relations matters. The reality of the situation is the pay negotiation region ... That is what we have here. There is, as I said, this recourse to the courts in unlikely event that there would be an appeal on a point of law. It would be our opinion that to any industrial relations tribunal what is intended in this provision would be quite clear. It has therefore the objective that we have set out to achieve in this legislation”.

• • • • The Appellant argued that the above quote was taken out of context. In identifying what was intended by “place” in the Seanad Debate it was said that “there should be a reasonable spread of locality covered” and the Minister referred, by example, to Dublin and Bray. There was no suggestion that the whole State should be covered, and the Appellant argued that the Equality Officer put undue emphasis on the paragraph quoted, without fully examining the context.
        
        Finally the Appellant also argued that, just because the replacement legislation (the 1998-2004 Acts) did not contain the “same place” condition, this provided no legal basis for the Tribunal to conclude that the 1974 Act’s provisions are retrospectively invalid. Section 2(1) was not replaced in the later Acts.

• • • • C-157/86,Murphy v An Bord Telecom[1988] ECR 673

• • “Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work”.
    

• • • • “a question of infringement of the Treaty does indeed arise where a Member State adds to the conditions for equal pay for men and women a condition which does not appear in Article 119 of the Treaty or in the directive in question, and may result in restrictions on the right to equal pay.”
        
        He went on to state:
        
        “in a departure from Article 119… Danish law restricts the right to equal pay to equal work…at the same place of work…. As appears from the second sentence of Article 1 of the directive, however, a comparison of duties within the same fixed establishment of an undertaking or even within a single undertaking will not always be sufficient. In certain circumstances comparison with work of equal value in other undertakings covered by the collective agreement in question will be necessary.”
        
        “In certain circumstances the additional criterion of “the same place of work” for equal may therefore place a restriction on the principle of equal pay laid down in Article 119… and amplified in the directive in question. The mere fact that such a supplementary condition for equal pay which has no foundation in Article 119 or in the directive has been added must in any event be regarded as an infringement of the Treaty. That supplementary condition limits the scope, governed by the Treaty, of the extension of the principle of equal pay for men and women…”
        
    Contrary to the Appellant's assertion, the ECJ did notdisagree with the Advocate –General’s Opinion regarding “same place” but stated that, as the EC had not formally raised that issue, there was no reason to decide it.In C-157/86,Murphy v An Bord Telecom[1988] ECR 673, it is not, as the Appellant claims, “noteworthy” nor can any inference be drawn from the fact that neither the ECJ nor the Advocate-General made any comment on the “same place” issue. Three questions were referred to the ECJ by the Irish High Court. As the first question, when decided upon, decided the whole case, it was deemed unnecessary by the Court to deal with the other two questions, including the issue of place.

• • Article 141 of the Treaty replaced Article 119. It refers to“cases in which work is carried out in the same establishment or service, whether private or public”,and applies no restriction even on the “same employer”. It logically then follows that there can be no restriction on “same place”.

• • In the case of C- 106/89Marleasing SA v LA Commercial Internacional de Alimentacion SA[1990] ECR 4135 the ECJ stated that: -

• • • • “the member States obligation arising from a Directive to achieve the result envisaged by the Directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all authorities of member States including, matters within their jurisdiction, the Courts. It follows that, in applying national, whether the provisions in question were adopted before or after the Directive, the national Court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.”
        
        This view was endorsed by Mr Justice Murphy in the Irish High Court in the case ofNathan v Bailey Gibson, I.P.U. & Minister for Labour(Unreported, 8th October 1990) as follows:
        
        “reference was also made in the judgement of the European Court…. in Marleasing (etc)…that was a far reaching decision in so far as it determined that national courts are bound to interpret their national laws in light of the wording and purposes of the relevant EEC Directive even where the national law was adopted before the Directive was given. That was, as I say, a far-reaching application of the general rule on interpretation which itself is not open to challenge.”

• -Dublin Corporation v 16 Female Bath Attendants(EP33/1980)
  
  Swimming pools in different parts of the City deemed to be “same place”.

• 
  Claimants based in Waterford, comparator in Kilkenny. Salaries centrally determined. Comparator deemed valid.
  

• 
  (Portlaoise and Tullamore ruled as the “same place” through the “locality” criterion by the Equality Officer).

• • “it shall be a term of the contract under which A is employed that, subject to this Act, A shall at anytime be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or associated employer”
    

• • “… a question of infringement of the Treaty does indeed arise where a Member State adds to the conditions for equal pay for men and women a condition which does not appear in Article 119 of the Treaty or in the directive in question, and may result in restrictions on the right to equal pay.”

• • “in a departure from Article 119…. Danish law restricts the right to equal pay to equal work ….at the same place of work….. As appears from the second sentence of Article 1 of the directive, however, a comparison of duties within the same fixed establishment of an undertaking or even within a single undertaking will not always be sufficient. In certain circumstances comparison with work of equal value in other undertakings covered by the collective agreement in question will be necessary.”

• • “In certain circumstances the additional criterion of “the same place of work” for equal value may therefore place a restriction on the principle of equal pay laid down in Article 119….and amplified in the directive I question. The mere fact that such a supplementary condition for equal pay which has no foundation in Article 119 or in the directive has been added must in any event be regarded as an infringement of the Treaty. That supplementary condition limits the scope, governed by the Treaty, of the extension of the principle of equal pay for men and women.”
    

• • “…the Member States' obligation arising from a Directive to achieve the result envisaged by the Directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all authorities of member States including, for matters within their jurisdiction, the Courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the Directive, the national Court called upon to interpret it is required to so as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.”

• 
  The Court in reaching this decision has borne in mind the decisions of the Supreme Court inB.T.F.v Director of Public Prosecutions(2005 2ILRM 367) wherein Hardiman J. stated:-
  
  “In the present case the question of the applicant’s delay was considered as a preliminary issue, and therefore (as the quotation above from the judgement of the learned trial judge makes clear) in isolation. It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the statute of limitations is pleaded. In other cases, however, the position may be much less clear. InTara Exploration and Development Co. v Minister for Industry and Commerce[1975] I.R. 242, this court considered an application in complex litigation to deal with certain matters of law as preliminary issues, before any evidence was given in relation to matters of fact.
  
  O’Higgins C.J. , in considering the criteria applicable to such applications said at p.256:-
  
  “In addition it must appear to the Court to be convenient to try such question of law before any evidence is given. This will involve a consideration of the effect on other issues in the case and whether its resolution will reduce these significantly, or shorten the hearing. Convenience in this respect must also be considered in the light of what appears fair proper and just in the circumstances.”
  
  The Supreme Court in that case upheld the High Court’s refusal to try the issues of law in a preliminary manner. In the High Court, Kenny J. had cited with approval the decision of Lord Evershed M.R. inWindsor Refrigeration Co. Ltd vBranch Nominees Ltd[1961] Ch.375 at 396 to this effect:
  
  “The course which this matter has taken emphasises as clearly as any case in my experience has emphasised the extreme unwisdom – save in very exceptional cases – of adopting this procedure of preliminary issues. My experience has taught me (and this case emphasises the teaching) that the shortest cut so attempted inevitably turns out to be the longest way round.”
  
  As a general policy therefore, all issues should be determined at the first hearing of the case.