FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : CARLOW ARTS CENTRE LIMITED (REPRESENTED BY O'MARA GERAGHTY MCCOURT SOLICITORS) - AND - MS CARISSA FARRELL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-117290-ft/11/RG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court. A Labour Court hearing took place on the 28th November, 2012 and the 23rd May, 2013. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Carissa Farrell against the decision of a Rights Commissioner in her claim against her former employer, Carlow Arts Centre Limited, under the Protection of Employees (Fixed-term Work) Act 2003 (the Act). In this Determination Ms Farrell is referred to as the Claimant and Carlow Arts Centre is referred to as the Respondent.
Background
The Claimant was employed as Director of a Visual Centre for Contemporary Art and the George Bernard Shaw Theatre, which are under the control of the Respondent. The Respondent is a Company limited by shares. Carlow County Council and Carlow Town Council each hold 50% of the shares.
The Claimant’s employment was pursuant to fixed-term contracts, commencing on 17thNovember 2008. The Claimant went on maternity leave from 17thMay 2011 to 9thNovember 2011 inclusive. She was not paid her salary during her period of maternity leave. The Claimant contends that she was treated less favourably in that regard than a permanent employee of Carlow County Council, with whom she claims to be engaged in like work. The comparator went on maternity leave on or about the same time as the Claimant and she was paid the difference between her social welfare entitlements and her full salary while on maternity leave.
The issues arising
There are two issues arising in this case. Firstly, the Claimant contends that Carlow County Council and the Respondent are associated employers within the meaning of s.2(2) of the Act. On that basis she claims that she is entitled to rely on an employee of that Authority in grounding her claim. This is denied by the Respondent. Secondly, the Respondent contends that the terms of the Claimant’s fixed-term contract, taken as a whole, are more favourable than the terms of the comparator's contract of employment. Consequently, in reliance on s.7(2) of the Act, the Respondent contends that the different treatment of the Claimant in respect to payment for maternity leave is objectively justified.
The Hearings
The matter came on for hearing before the Court on 28thNovember 2012. After the submissions of the parties were opened to the Court the case was adjourned so as to allow the Claimant to obtain actuarial evidence concerning the overall value of her fixed-term contract relative to the contract of employment of her nominated comparator. The adjourned hearing proceeded on 23rdMay 2013.
Value of the Claimant’s Contract
At the resumed hearing the Claimant presented a report prepared by Willis Risk Services (Ireland) Limited on her behalf. This report analysed the total value of her fixed-term contract over the period 1stJanuary 2008 to 1stJanuary 2012 compared to that of the comparator over the same period. It showed that the overall value of the Claimant’s contract exceeded that of the comparator’s contract over the reference period. Will's Risk Services (Ireland) Limited also evaluated the Claimant’s job relative to that of her comparator and found that the Claimant’s job was of higher value.
Position of the Parties
Based on the evidence proffered by the Claimant, Counsel for the Respondent submitted that having regard to s.7(2) of the Act the Court must find that the impugned difference in treatment in respect to pay for maternity leave was objectively justified. Counsel made that submission without prejudice to the Respondent’s contention that it is not an associated employer of Carlow County Council.
The Claimant submitted, in effect, that the work which she performed was of greater value than that of her comparator and that the difference in pay was attributable to that difference. On that basis the Claimant contended that when the additional value of her job was discounted she was treated less favourably in respect to pay for maternity leave. In advancing that argument the Claimant relied on s.5(2)(c) of the Act.
Statutory Provisions
Section 5(2)(c) of the Act provides that a fixed-term employee is comparable to a permanent employee if: -
- [T]he work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
Section 7(2) provides: -
- Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes ofsection 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.
Conclusion
The Claimant contends that the reference in s.5(2)(c) of the Act to work of greater value allows the Court to disregard the value of her contract attributable to the higher duties that she performs for the purpose of applying s.7(2) of the Act.
The Court cannot accept that submission. Sections 5 and 7 of the Act are stand-alone provisions and neither section is governed or qualified by the other. Section 5 provides a definition of a comparable permanent employee for the purposes of the Act. The reference therein to a person engaged in work of greater value is intended to deal with the type of situation that arose inMary Murphy and Ors.v Bord Telecom Eireann[1986] I.L.R.M. 483. That case concerned the interpretation of ss. 2 and 3 of the Anti-Discrimination (Pay) Act 1974. Section 2 of that Act provides that a female employee shall be entitled to the same rate of pay as a male employee where both are engaged in ‘like work’. Section. 3 (c) of the that Act provided that ‘two persons shall be regarded as employed in like work’ where ‘the work performed by one is equal in value to that performed by the other’. The Claimants were employed on work which was greater in value to that of their male comparators. Yet they were paid at a lower rate.
It was held that on a literal construction of those sections the right to equal pay arose where the value of the work performed by the claimant and the comparators is equal in value but not where the work of the comparator was of lesser value. It was subsequently held by the former ECJ that such a construction was incompatible with Article 199 of the EC Treaty (now Article 157 TFEU) and that a woman who is paid less that a man with whom she is engaged in work of equal or greater value is entitled to rely on the Act to claim equal pay.
The formulation in s.5 of the Act is intended to give effect to that general principle. It provides that a fixed-term employee is entitled to ground a claim under the Act for equal treatment in terms of working conditions by reference to a permanent employee with whom he or she is engaged in work of equal or greater value. However, the entitlement is to equality of working conditions and not to more favourable conditions.
This aspect of the case then turns of the correct interpretation of s.7(2) of the Act. That is a question to be determined by application of the normal rules or cannons of statutory construction. The first rule of statutory construction at common law is known as the literal rule. InHoward v. Commissioners of Public Works[1994] 1 I.R. 101, Blayney J. approved of the following passage from Craies on Statute Law:
The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver. ‘The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view.’ [per Lord Blackburn inDirect United States Cable Co. v. Anglo-American Telegraph Co. (1877) 2 App. Cas. 394].
InD.B. v. Minister for Health and Children[2003] 3 I.R. 12, Denham J. (as she then was) said at p. 21:
- In construing statutes, words should be given their natural and ordinary meaning. The approach taken by the courts to the construction of statutes was described by Blayney J. inHoward v. Commissioners of Public Works[1994] 1 I.R. 101. He emphasised that the cardinal rule for the construction of statutes was that they be construed according to the intention expressed in the acts themselves. If the words of the statute are precise and unambiguous then no more is necessary than to give them their ordinary sense. When the words are clear and unambiguous they declare best the intention of the legislature.
Section 7(2) of the Act is expressed in clear and unambiguous terms which must be given their natural and ordinary meaning. The clear import of the provision is that the overall value of a fixed-term employee’s contract, relative to that of a permanent comparator, is to be looked at in the round. If the overall value of both contracts is at least equal, less favourable treatment in regard to any particularity of the fixed-term employee’s contract is to be regarded as objectively justified. It is also clear that the provision is mandatory, as indicated by use of the word ‘shall’. It follows that if the circumstances described in the subsection are present the Court is mandated to find that the impugned difference in treatment is objectively justified and lawful.
The Claimant’s own evidence discloses that the overall value of her fixed-term contract is greater than that of her comparator’s permanent contract. Accordingly, s.7(2) of the Act provides the Respondent with a complete defence to the within claim.
In these circumstances it is unnecessary for the Court to consider the question of whether the Respondent and Carlow County Council are associated employers.
Determination
The Rights Commissioner was correct in holding that the within claim is not well founded, although the Court has reached that conclusion for different reasons. The appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
30th May, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.