FULL RECOMMENDATION
SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974 PARTIES : DEPARTMENT OF TOURISM, TRANSPORT AND COMMUNICATIONS - AND - FOUR WORKERS (REPRESENTED BY THE CIVIL AND PUBLIC SERVICE UNION) DIVISION : Chairman: Ms Owens Employer Member: Mr Brennan Worker Member: Mr Rorke |
1. Reconsideration of an Appeal by the Department of Tourism, Transport and Communications ('the Department') against Equality Officer's Recommendation No. EP9/1992.
BACKGROUND:
2. The Appeal of the Department in this case was first heard by the Labour Court ('the Court') on 27th April 1993. The Court issued its Determination AEP93/1 on 21st December 1993. The Department appealed against the Determination to the High Court on a point of law. The case was heard before Mr. Justice Keane, who gave judgement on 29th January 1996 and remitted the case back to the Court for reconsideration in the light of his judgement.
The High Court found that the Court had misconstrued Section 2(3) of the Anti-Discrimination (Pay) Act 1974 ('the Act') by holding that where a defence of 'red-circling' was raised as the 'grounds other than sex' for the payment of different rates of remuneration for like work, such 'red-circling' must be 'recognised, factual and acknowledged'. Rather than importing any such preconditions into the subsection, the Court's task was to satisfy itself whether the differential in pay between the claimants and the comparators was in fact based on grounds other than sex or not.
The Court reconsidered the case on 15th May 1997.
DETERMINATION:
In this case there are four claimants (female) and two comparators (male) who fill six Communication posts in the Accounts Section of the Irish Aviation Authority. It is common case that the six people are engaged on 'like work'.
However, the comparators occupy posts in the Section which are reserved for Radio Officers, and are paid the Radio Officer's rate of pay. The claimants are known as Communications Assistants and receive a lesser rate of pay.
Although all six workers in the Section do 'like work', there is no interchangeability between them; the claimants are regarded as being junior to the comparators, and can never be considered for promotion to the higher level reserved for the Radio Officers. It is argued by the Department that the reason for the differential in pay between the claimants and the comparators is 'grounds other than sex', and that in effect the two comparators are 'red-circled'.
The Department has relied for this argument on the medical evidence submitted during the hearing and the re-hearing of this appeal which showed that the two comparators suffer from ill-health which makes them unfit for shift work. Shift work, the Department claimed, is an essential and unavoidable feature of Radio Officer duties. The argument is that by reason of their health, the comparators could not perform the duties of Radio Officers and were consequently transferred to the Accounts Section under a de facto 'red-circled' arrangement which enabled them to retain their Radio Officer rate of pay.
While the Court accepts that these particular workers were indeed unfit for shift work, it finds that in all other respects they were fit to perform the duties of Radio Officers. The Court also finds that shift work was not an essential part of the duties. The moving of the comparators into the Accounts Section, therefore, meant only that they were enabled to work regular hours and to avoid shift duty. It did not signify that they were unfit for or unable to discharge the responsibilities of the work of a Radio Officer, but only that the hours of working did not suit them. Indeed, in the Accounts Section, the comparators had been regarded by the employer as being in responsible positions, and 'supervisory' to the claimants, with whom they were doing 'like work'.
The Court is satisfied that at least two positions in the Accounts Section were as a matter of course permanently retained for filling by Radio Officers. At one time there had been three such positions reserved for Radio Officers. It suited the Department to use these positions for filling by Officers who were not available for shift work, and who could not therefore be assigned the full duty roster of a Radio Officer, but this was not always the case. On occasion, the positions had been advertised for filling by Radio Officers, on a short-time basis without any reference to the capacity or otherwise of candidates to carry out the full content of Radio Officer duties, and were in fact filled by Officers who were able to work the shift duty roster.
The Court is therefore satisfied that the payment of the comparators at Radio Officers' rates of pay while working in the Accounts Section was not dependant on any special arrangement to protect their rate of pay while they were unfit for the work of Radio Officers, but rather it was the rate for men working in the Accounts Section who had previously been working as Radio Officers. The Court does not accept that the positions were 'red-circled', either for the two comparators, or for any other Radio Officer who happened to be working in the Accounts Section. The reality was that any Radio Officer could be transferred into that Section and would retain his rate of pay.
In the light of that reality, the Court finds that the differential in pay between the claimants and the comparators is not genuinely based on grounds other than sex. It finds that the defence of 'red-circling' on grounds of unsuitability for shift work was put forward in an attempt to justify the position of the particular comparators in this case, but that the real reason for the differential in pay is that the Radio Officers are male and the Communications Assistants are female.
The Court therefore rejects the Department's appeal against EP9/1992, and determines that the claimants are entitled to the same rate of remuneration as that of the comparators with effect from 27th April 1989.
Signed on behalf of the Labour Court
Evelyn Owens
28th November, 1997______________________
F.B./S.G.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fran Brennan, Court Secretary.