SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Mr Flood
Employer Member: Mr Brennan
Worker Member: Ms Ni Mhurchu
1. Appeal against Equality Officer's Recommendation No. EP11/96.
2. The dispute concerns a claim by the Union, on behalf of 187 named supervisors and clerical assistants employed by the Company at its store in O'Connell Street, Dublin, that each is entitled under the Anti-Discrimination (Pay) Act 1974 ('the Act'), to the same rate of pay as that paid to each of 11 named storemen employed by the Company at its Mary Street, Dublin store. The dispute was the subject of an investigation by an Equality Officer and the full background to the case is as set out in the Equality Officer's Recommendation. The Equality Officer recommended as follows:-
- (i) that none of the named sales assistant claimants is entitled to the same rate of remuneration as any of the comparators;
(ii) that, having regard to the provisions of Section 8(5) of the Act, each of the named supervisor claimants be paid the same rate of remuneration as each of the comparators, retrospective to the date that they took up employment with the Company.
The Recommendation was appealed by both parties, the Company on the 16th of December, 1996 and the Union on the 6th of January, 1997.
The grounds of appeal are as follows:-
- (1) That the Equality Officer erred in law and in fact in her findings at paragraphs 5.30, 5.32, 5.33, 5.34, 7.1(i);
(2) any other grounds.
(1) That the Equality Officer erred in law and in fact in concluding that there were no legitimate grounds other than sex to justify the rate of pay of the Supervisor group;
(2) That the Equality Officer erred in law and in fact in concluding that the Company had a case to answer in relation to Supervisors under the terms of the Anti-Discrimination (Pay) Act, 1974;
(3) Any other grounds of appeal which arise during the course of investigating the appeal.
The Court heard the appeal on the 13th of May, 1997.
Sales Assistants' case:
In this dispute, it is agreed that the claimants and the comparators perform ‘like work’. What is at issue is whether there are ‘grounds other than sex’ for the differences in remuneration between the claimants and the comparators.
The Court is satisfied that the differences in pay between the sales assistants and the comparator storepersons arose because of matters which are unrelated to the sex of the workers, and are objectively justified on economic grounds.
While the Union representing the storepersons had a history of exercising considerable industrial pressure with demarcation disputes and restrictive work practices, and ultimately were able to exert such pressure to obtain increases in excess of the norm by threatening industrial action, the Court is satisfied that the Company did, in return, achieve significant changes in work conditions.
The Court finds that the comparators achieved their current level of pay by their industrial relations agreements with the Company during the period 1974-1979, and is satisfied that if it had not been for those agreements, the Company would have suffered serious losses. In return for those agreements, the Company succeeded in operating the use of external warehouse facilities, the distribution of merchandise by transport contractors, the introduction of mechanised handling equipment with associated new work practices, the processing of documentation by other staff (which in turn allowed for computerisation of the despatch and receipt service), better security in the despatch system, the use of other staff for unpacking and arranging merchandise, more efficient arrangements for replenishment of stock, and new cleaning and waste removal duties.
To avoid any ambiguity following the judgement of the High Court inFlynn and Others v. Primark (trading as Penneys)of 12th January 1997, and in view of its findings expressed in the foregoing paragraph, this Court finds that the Company was economically justified in arriving at the higher rates of pay for the comparators. This justification is founded on the basis of objective economic factors which are unrelated to the sex of the workers and which the Court is satisfied were appropriate and necessary to achieve economic viability. These factors are still valid, because the Company continues to have the benefit of the terms of the industrial relations agreements reached, and because it would be inviting serious industrial relations unrest to attempt to reduce those terms at this point in time.
It should further be noted that the parties in this dispute are not represented by the same trade union and that their wage rates (which are both unisex rates) have been achieved by quite separate industrial relations processes. Given the differences in these processes, the analogy which the Union has sought to make with theEnderbycase is inappropriate.
The Court rejects the appeal of the Union and finds that the Company did not discriminate against the workers.
The Court agrees with the conclusions of the Equality Officer that the supervisors perform 'like work' with the comparators, and with her rejection of the defence by the Company that there were 'grounds other than sex' for the differences in the rates of pay between the two groups.
For the purpose of its appeal against the findings of the Equality Officer, the Company argued that the remuneration of the supervisors was higher than that of the comparators, but that it was paid in different ways to each - one group receiving a smaller salary, but receiving a bonus which compensated for the difference in basic salary.
The Court does not accept this argument and upholds the Recommendation of the Equality Officer that each of the supervisor claimants should be paid the same rate of remuneration as each of the comparators. This to be paid in addition to the bonus.
Signed on behalf of the Labour Court
19th of March, 1998______________________
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.