FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 Section 83 (1), Employment Equality Acts, 1998 to 2011 PARTIES : DEPARTMENT OF JUSTICE,EQUALITY AND LAW REFORM (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - CPSU DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011
BACKGROUND:
2. This is a preliminary Determination under Section 83 of the Employment Equality Acts, 1998 to 2011. The substantive issue was previously heard by the Court
(Labour Court Determination No: EDA0713) refers. The Court's Determination was subsequently appealed to the High Court on a Point of Law. The High Court remitted the case back to the Labour Court for rehearing. A Labour Court hearing took place on 6th November 2015. The following is the Court's Determination:
DETERMINATION:
This is a preliminary ruling of the Court.
The substantive matter concerns a claim for equal pay by 14 members of CPSU who are civil servants in what was, at time the within claims were initiated, the Department of Justice, Equality and Law Reform. They are clerical officers and are assigned to work as such in various Garda Stations. They are seeking equal pay with members of An Garda Síochána with whom they claim to be engaged in like work.
Background
The case has a long history the details of which do not need to be set out in this Determination. Suffice it to say that the case was before the Court in 2007 by way of an appeal by the Respondents against the decision of the Equality Tribunal and a cross appeal by the Claimants. The Court issued a Determination on 22ndJuly 2007 (reported at [2008] 19 E.L.R 140). The Court allowed the Respondent’s appeal and disallowed the cross appeal. The Claimants appealed on a point of law to the High Court against that Determination. The High Court stayed the appeal and referred certain question of European law to the Court of Justice of the European Union (formally the ECJ) for a preliminary ruling. Having received the ruling of the CJEU the High Court (McCarthy J.) delivered judgment on 13thJanuary 2013 in which the Court allowed the appeal and remitted the matter to this Court with directions on the approach that should be adopted in rehearing the case.
It is pursuant to the judgment and Order of the High Court that the appeal is now before the Court.
Judgment of the High Court
Having considered the applicable legal principles in the case and having reviewed the response of the CJEU to the questions referred by the High Court, McCarthy J concluded his judgment (at paragraph 35,) saying: -
- In light of my conclusions, I will remit the matter to the Labour Court. It should adopt the following approach when rehearing it, namely:-
- (i) It should first choose comparators—all else follows from this. These should be drawn from the generality of all those engaged in clerical work for or as members of An Garda Síochána, that being the class for which the respondent's contend: they should be used for all purposes.
(ii) By reference to validly chosen comparators, it should then address the issue of whether or not the work performed by the claimants is like work.
(iii) If the work is held so to be the Court should then address the issue of whether or not the differential in pay is objectively justified. For the avoidance of doubt, this will not involve consideration of the reasons for the assignment of gardaí to certain posts as done at the instigation of the respondents when the case was before it.
(iv) Insofar as it may be necessary to deal with industrial relations issues, they cannot of themselves be the sole basis justifying a differential, but regard may be had to them as one of a number of factors.
(v) Consideration must be given to the context in which the generality work – by definition this will extend to taking into account the nature of not only the clerical work but all police work, including all incidents of service in An Garda Síochána.
- (i) It should first choose comparators—all else follows from this. These should be drawn from the generality of all those engaged in clerical work for or as members of An Garda Síochána, that being the class for which the respondent's contend: they should be used for all purposes.
On the matter coming back before it, the Court convened a case management conference involving the parties. This case management conference was primarily directed at addressing two issues, namely, how are comparators to be selected and from what pool are those comparators to be drawn in compliance with the directions of the High Court. Those issues have a particular significance in this case since the High Court has directed that this Court should choose the comparators, a task normally reserved to the Claimants. Secondly, the case advanced by the Claimants throughout the previous proceedings was that they are engaged in like work with named Garda Officers who perform clerical duties only. It is clear from the judgment of McCarthy J that such a narrow comparison is impermissible in law.
A sharp difference emerged between the parties on how the questions identified by the Court should be answered and that difference was brought more sharply into focus in the written submissions made by the parties on these questions after the case management conference.
The selection of comparators is clearly crucial to the nature of the case that the Court is required to determine (and was identified as such by McCarthy J in paragraph 35(i) of his judgment, recited above). In these circumstances the Court decided to determine those questions as preliminary issues and to convene a hearing for that purpose.
Position of the Parties
The Respondents submitted that the Court must strictly apply the directions of the High Court. It was submitted that the approach to be adopted is clearly set out in the High Court judgment and requires that the Court itself must select comparators and those comparators must be drawn from all members of An Garda Síochána of Garda rank who preform clerical duties whether in combination with normal policing duties or otherwise. It was suggested by Counsel for the Respondents that since all Gardai perform clerical work to some degree, this could mean that the appropriate pool for comparison is the entire membership of the force of Garda rank.
The Claimants accept that the effect of the directions given is that the Court must select comparators. However, on the pool from which the comparators are to be drawn they differ sharply from the position taken by the Respondents. The Claimant submit that in the context of the submissions and arguments advanced in the course of the proceedings before the High Court and the CJEU, the judgment of the High Court must be construed as providing that the comparators should be drawn from amongst those members of An Garda Síochána who occupy what are referred to as ‘designated posts’, that is to say posts involving the performance of clerical work which may occasionally require the use of policing powers or functions. The Claimant contend that it was this group that the Respondent contended for in its submissions to the High Court and that McCarthy J contextualised his remarks at paragraph 35(i) of his judgment by reference to the those submissions.
Conclusion
This matter is now before the Court pursuant to the judgment and Order of the High Court. It goes without saying that the Court is absolutely bound to faithfully comply with the directions that it has received from the High Court. The Court is not entitled to engage in an exercise of parsing and analysing the judgment of the High Court, or to look behind that judgment in order to ascribe to the High Court Judge an intention at variance with what the words that he actually used ordinarily mean.
Mr Justice McCarthy obviously intended to assist this Court in setting out clearly what it is obliged to do in order to comply with the law as he had defined it. The Court must proceed on an acceptance that the judge chose his words carefully and that what he said corresponds to what he intended to convey. In short, the Court must apply the directions received as it finds them.
The findings of the High Court are encapsulated in the final passage of the judgment, which is recited earlier in this Determination. In ease of this Court, that passage is clearly intended as a concise summary of the High Court’s findings and conclusions and it contains clear directions, the import of which leave no room for doubt. In so far as is relevant for present purposes, they are: -
(1)This Court must choose comparators against which the claims of like work are to be evaluated(2)The comparators are to be drawn from the generality of all those engaged in clerical work for or as members of An Garda Síochána
(3)The same comparators are to be used to test any plea of objective justification of the difference in pay, should that arise.
Accordingly, the Court will choose comparators. Those comparators will be drawn from, and be representative of, all members of An Garda Síochána of Garda rank who perform clerical work (other than to ade minimisextent)in the course of their duties. For the avoidance of doubt, the Court does not believe that this extends to the entire membership of the force of Garda rank. Mr Justice McCarty pointed out that a perfectly coherent argument can be advanced for drawing comparators from the entire force but he eschewed adopting that proposition in light of the position taken by the parties (see paragraph 26 of the judgment). It does, however, include those Gardai who perform both ordinary policing duties and clerical work for or as members of An Garda Síochána.
The Court will consider further submissions from the parties on how it should proceed in the selection of comparators in light of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
26th November 2015______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.