SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
DEPARTMENT OF JUSTICE
- AND -
IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
1. Appeal by the Unions against Equality Officer's Recommendation EP6/95 and EE10 95 concerning an allegation that the Department of Justice discriminated against thirty two named part- time traffic wardens on the basis of their sex by giving a more advantageous arrangement in relation to the payment of a weekly travel allowance to full-time traffic wardens. The Unions claim that the Department's action is in contravention of the 1974 Act.
2. 1. Traffic wardens in the Dublin area both full-time and part-time have been in receipt of a weekly travel allowance since 1981. The allowance came into existence after the Labour Court recommended payment of a travel allowance to traffic wardens on the same terms as those applicable to general operatives in Dublin Corporation.
Full time traffic wardens work a 39 hour week and part-time traffic wardens work a 19.5 hour week. In 1992 the Garda authorities advertised for part-time traffic wardens. The advertisements stated that the weekly travelling allowance payable would be £23.84 which was the rate paid at that time to all traffic wardens. The actual allowance paid to part-time traffic wardens recruited since 1992, the claimants included, has been half the amount paid to full-time traffic wardens. In August 1993 the Department of Justice informed the Unions that it had decided to freeze, with immediate effect, the allowance paid to part-time traffic wardens recruited prior to 1992 "until such time as it is equal to the pro rata payment received by part-time traffic wardens employed since 1992".
The Department stated that its decision was taken because part-time traffic wardens employed prior to 1992 had been paid in error, the same travel time per day as their full time colleagues (10/39 ths of weekly pay). The Department stated this was contrary to the general principle of pro-rata payment of allowances to part-time workers and that those part-time traffic wardens recruited since 1992 were paid at the correct rate i.e. 5/39 ths of weekly pay.
2. The workers, through their Unions, claimed that they are entitled to receive the same travelling allowance in absolute terms as that paid to full-time colleagues.
3. The Department rejected the claim stating that the variations in the amounts paid to full-time and part-time traffic wardens relate solely to the number of hours worked and are not related to sex or marital status.
4. The Equality Officer investigated the dispute at hearings which were held in October 1994 and June 1995. On the 28th August 1995 the Equality Officer issued his recommendation as follows:-
"Anti-Discrimination (Pay) Act, 1974
....I consider that the claimants have not been discriminated against in relation to the payment of the travelling allowance. "
"Employment Eqaulity Act, 1977
I have found that this dispute refers to remuneration and it is therefore excluded from the application of the Act of 1977 by virtue of Section 3(1) of that Act".
5. On the 20th September 1995 the Unions appealed the Equality Officer's recommendation to the Labour Court on the following grounds:-
1. The Equality Officer erred in law and in fact in finding that the appellants had not been directly discriminated against by the respondents.
2. The Equality Officer erred in law and in fact in finding that the appellants had not been indirectly discriminated against by the respondents.
3. All grounds that have been argued at the Equality Officer's hearing and such other grounds as may be submitted during the Labour Court hearing.
4. The Equality Officer erred in law and in fact in finding that there was no prima facie case of discrimination.
5. The Equality Officer erred in law and in fact in finding that there was no breach of the Equal Treatment European Union Directive 76/207 E.E.C.
The Labour Court investigated the dispute on the 27th March 1996. Both parties made written submissions (details supplied) to the Court and expanded orally on their submissions at the hearing.
In this appeal, IMPACT (‘the Union’) contends, in relation to the Anti-discrimination (Pay) Act 1974 (‘the 1974’ Act’) that the core issue is the meaning of ‘travelling allowance’ in relation to pay. The Union claims that the allowance is paid in recognition of the cost of travelling to and from work, and that it is not part of basic pay. It relies on a High Court interpretation in the case of Jackson & Others v. Dublin County Council in 1988, in which, it is alleged, Mr. Justice Barrington stated ‘In this case we are deciding upon an allowance which is paid in respect of travelling to and from work. Thus it is not a payment in respect of the normal weekly working hours as it is a travelling allowance.’
The Union also says that the allowance is related to a cost or an expense to each worker and the payment should therefore be the same, irrespective of whether the individual works full-time or part-time. The Union claims that to apply a ‘pro-rata’ principle in relation to the travel allowance undermines the general principles of equality legislation; the Court should examine each and every aspect of the remuneration package which should be equal in real terms, one with the other.
The Union further argues that there is a case of indirect discrimination under the Employment Equality Act 1977 (‘the 1977 Act’). It says that in order to be paid the full allowance, there is a requirement on the part-time wardens to work full-time, and that since most of the part-time wardens are female, this requirement has a disproportionate impact on them, and is discriminatory.
The employer, namely, the Department of Justice (‘the Department’), argues that the travel allowance is paid on the basis of one hour’s pay per day, and that full-time wardens receive 5/39ths of their pay as an allowance, while the part-time wardens also receive 5/39ths of their weekly pay as an allowance. However, since the total payment of the part-time wardens is half that of a full-time warden, the allowance results in being paid also at half that paid to a full-time worker. The Department claims that the reward system is the same for both full-time and part-time traffic wardens, and that the pro-rata system of payment is not discriminatory, even if a greater number of women are in the category of part-time worker. The Department points out that the difference in the amounts of the allowance paid relates only to the difference in the amount of time worked, and is not in any way related to the sex of the worker.
In relation to the claim under the 1977 Act, the Department asserts that the travel allowance is part of the remuneration package of traffic wardens, and is therefore excluded from consideration under the 1977 Act.
1. The first question for the Court to determine is whether or not this case falls to be considered under the 1974 Act or the 1977 Act. The issue in that respect is whether or not the travelling allowance which is in dispute in this case constitutes ‘remuneration’ or not. If it does, then the 1974 Act is the relevant statute for the determination of this case, and if it does not, then the 1977 Act is the relevant one.
Under the 1974 Act, ‘remuneration’ is defined as including ‘any consideration, whether in cash or in kind , which an employee receives, directly or indirectly, in respect of his employment from his employer.’
Having considered the matter carefully, the Court has come to the conclusion that the travelling allowance is part of the consideration received by the traffic wardens in respect of their employment, and that it is therefore ‘remuneration’ within the meaning of the 1974 Act. (The industrial relations history of the allowance which has led the Court to this conclusion, is outlined later in this determination.)
2. The second issue is whether the payment of the travelling allowance to part-time traffic wardens on a pro-rata basis with their full-time colleagues is discriminatory, given that most of the part-time wardens are women, and that most of the full-time wardens are men.
The answer to the question depends on whether or not the part-time workers are paid ‘the same rate of remuneration’ as the full-time workers, and if they are not, whether there are grounds other than sex for the difference in the rates of remuneration.
The Union accepts that the payment of the travelling allowance to the part-time traffic wardens is paid pro-rata the full allowance. However, it claims that pro-rata payment in this case is discriminatory. The allegation by the Union is that the allowance should not be regarded as part of a total remuneration package, but should be seen as compensation for the cost of getting to and from work, and since that cost is the same, whether the workers are full-time or part-time, the payment should be the same; the full rate of the allowance should be paid to everyone. The Union claims that the part-timers are not being treated equally unless each and every aspect of the remuneration package is the same.
In support of its case, the Union cites the case of Nimz v. Freie und Hansestadt Hamburg (Case 184/89), (‘the Nimz Case’), and the case of Bilka-Kaufhaus GmbH v. Weber von Hartz (Case 170/84), (‘the Bilka-Kaufhaus case’). The Union also relies on the case of Jackson v. Dublin County Council mentioned above. The Department relies on the case of Jenkins v. Kingsgate (Clothing Productions)Ltd (Case 96/80)(‘the Jenkins v. Kingsgate case’).
In other words, the Union is claiming that in one aspect of the remuneration package, pro-rata payment is not equal pay. The travel allowance, according to this argument, should be separated from the other parts of the remuneration, and paid in its entirety (one hour’s pay per day) to the part-time work-force.
The travel allowance in question is derived from a scheme which has operated in the construction industry to compensate workers for getting to and from work, as well as to encourage them to turn up for work. It was calculated on the basis of the distance in miles and the time it took for a worker to travel to his place of work, but the General Post Office was taken as a notional starting point. From that starting point, bands of mileage were devised, and depending on the distance of the job from the General Post Office, the worker received an allowance to compensate for the time he took to get to work. Even if a worker lived within walking distance of his place of work, his travel allowance depended on the distance of his place of work from the G.P.O., and the length of time it was supposed to take him to travel that distance.
Over the years, however, and as the scheme was adapted into other areas and departments of employment, the travel allowance developed into an allowance for travel the amount of which was calculated on the basis of an hourly rate of pay, and the amount payable depended on how many working hours it supposedly took the worker to get from home to his place of work (still taking the GPO as a notional starting point).
Traffic wardens had claimed a travelling allowance since 1981. The claim was for an allowance based on one hour’s pay per day. The Labour Court, in an industrial relations Recommendation of 24th November 1981 (Rec.No.6744), had recommended concession of the claim, and payment was subsequently made to the traffic wardens on the basis of one hour’s pay per day, or 5/39ths of weekly pay.
In a separate and subsequent industrial relations dispute case against Dublin Corporation (Rec.No.7699), part-time play-centre workers had claimed the full amount of the same type of travel allowance, which was payable to other Corporation workers. In that case, the Labour Court recognised the principle that part-time employees should be paid pro-rata to full-time employees, and did not recommend concession of the claim ‘having regard to the origins of the present form of travel allowance’. The Court, in that case, had implicitly accepted that the allowance had become part of basic pay, and that it was therefore proper to pay part-time workers the travel allowance on a pro-rata basis.
In LCR13903, in an earlier industrial relations case against the Department, the issue of the calculation of the travel allowance arose in relation to full-time traffic wardens, because certain part-timers were being paid more than the allowance paid to the full-time staff, resulting in what the Union regarded as unfair treatment towards the full-time staff.(The dispute was to do with the rate at which the allowance was calculated). The Court in that case held that the ‘present method of calculating the payment of travelling-time to wardens is appropriate and correct’. By this Recommendation the Court implicitly endorsed the Department’s position on payment of a travel allowance to part-time staff, which was that certain part-time staff had been paid a full travel allowance ‘in error’, and that the proper rate for payment of the allowance is ‘pro-rata’ the payment to full-time staff.
It is apparent from this recent industrial relations history of the claims relating to a travelling allowance that what had once been a payment specifically addressed to the cost of getting to and from work has in fact evolved into an additional element of the pay package of certain public sector workers; it is bargained for separately from basic pay, but it has, in reality, no relevance to travel, and is simply a concession from the employer, forming part of the consideration for the job done. The Court agrees with the Equality Officer that, today, at any rate, the allowance is ‘an allowance in the nature of pay which forms part of the weekly remuneration package’.
The Court has considered the information available in the submissions relating to the case of Jackson v. Dublin County Council. It has not been able to trace in the records of written judgements the full text of the judgement on which the Union relies, but is satisfied, in any event, that the case is not relevant to the issue before the Court. The issue before the Court is whether the allowance should be treated as part of the basic remuneration of the workers for the purposes of determining whether they are paid at the same rate of remuneration as their full-time colleagues, and are not suffering discrimination.
The union is relying on a statement by the Honourable Judge of the High Court that the travelling allowance was not 'a payment in respect of normal weekly working hours' to establish that the travelling allowance in this case is not part of basic remuneration. However, that case would appear to have concerned the pay of workers during annual leave, and so had to determine what was the 'normal weekly rate' of remuneration for the purposes of the Holidays (Employees) Act of 1973. For the purpose of this case, the issue for this Court is whether the travelling allowance forms part of the workers' remuneration as defined in Section 1(1) of the 1974 Act. In other words, the case on which the Union relies interpreted the normal weekly rate of remuneration, whereas in this case we have to consider the meaning of remuneration itself.
The Court is satisfied that the part-time workers are being paid at the ‘same rate of remuneration’ as their full-time colleagues, and that there is no discrimination against them within the meaning of the 1974 Act. Given the industrial relations history of the travelling allowance, the fact that it has become part of basic remuneration, and the fact that it is paid pro-rata the hours worked, namely on the basis of one hour for approximately every 8 worked, both the full-timers and the part-timers receive the same ‘rate of remuneration’.
The Court agrees with the Equality Officer that the Bilka-Kaufhaus case has no bearing on the issue, because in this case, the total remuneration is the same for both full-time and part-time workers on an ‘hour-to-hour’ comparison of their rates. The Nimz case has no relevance either, since it related to length of service for entitlement to salary progression.
The Court has also considered the Jenkins v. Kingsgate case, and is satisfied that, having regard to the facts of this case, and to the history of the travelling allowance now payable to traffic wardens, the policy and practice in relation to the payment of the allowance, which is represented as a difference based on weekly working hours, does not amount to discrimination based on the sex of the workers.
The justification for a pro-rata payment to part-timers stems from the industrial relations history of such an allowance in the public sector, which has developed the allowance from being a particular cost to and incentive for workers to get to work into being simply another element of basic pay. This "developed" identity for the allowance has been ratified by the Labour Court in industrial relations disputes, as has the propriety of paying the allowance pro-rata to part-time workers.
The Court therefore finds that the claimants are paid the same rate of remuneration as their full-time colleagues and do not suffer discrimination within the meaning of the 1974 Act.
3. The Court has noted the Union’s contentions relating to the findings of the Equality Officer under the 1977 Act. However, in the Court’s view, there is no case to consider under the 1977 Act, since the issue is to do with remuneration and can be completely answered under the 1974 Act.
Furthermore, there is no disproportionate adverse impact on one sex in this case. The mostly female part-time traffic wardens are treated in exactly the same way as the mostly male full-time traffic wardens. They are paid an allowance based on 5/39ths of their total pay calculated on the normal weekly wage of the worker. There is no disproportionate impact which would give rise to consideration of a claim of indirect discrimination.
The Court, therefore, determines that the appeal fails.
Signed on behalf of the Labour Court
15th May, 1997______________________
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.