SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974
- AND -
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr. Somers
1. Appeal against Equality Officer's Recommendation EP 10/2000.
2. In May 1997 FAS concluded a Pay and Restructuring Agreement with SIPTU and with the other unions representing FAS staff. SIPTU represents a significant majority of the staff in FAS and is the only Union that negotiates on behalf of Instructors. The restructuring agreement was concluded under the terms of Clause (iii) A of the PCW Agreement . The pay elements of the agreement were based on the pay agreement for Higher Executive Officers and Executive Officers in the Civil Service, which included Standard Scales with Long Service Increments and Higher Scales. Grades 8 and 10 in FAS have a long established relationship with the grades of HEO and EO in the Civil Service.
The FAS pay agreement provides for 30% of Instructors to be assigned to the Higher Grade 8 Scale , with 80% of the initial number being appointed on the basis of Seniority and the balance by selection. This is basically the same criteria as applied to the HEO Grade in the Civil Service except that in the Civil Service 50% of the initial number of appointments was based on seniority and 50% was based on performance related criteria.
The process for making appointments by Selection (20%) was set out in part 3.5 of the Pay Section of the FAS Restructuring Agreement. The process was amended slightly as a result of subsequent representation by SIPTU. The amended process provided for candidates to submit a curriculum vitae rather than a special application form and it was agreed that all applicants would be interviewed.
The worker claims that he was discriminated against because he is employed on "like work" with a named female comparator who had been appointed under this selection process and he, therefore should receive equal pay. The case was heard by an Equality Officer and the Equality Officer recommended:
" I am satisfied that there are grounds other than sex in terms of Section 2(3) of the Anti-Discrimination (Pay) Act 1974 for the difference in pay between the claimant and the named female comparator.".
On the 15th May 2000 the claimant appealed the Equality Officers recommendation. The Court investigated the complaint on the 8th February 2001.
3. 1. The worker alleges that he is being discriminated against because a person of the opposite sex is being paid a higher rate of pay for doing the same job as he does.
2. The competition for appointment was not fair or equitable.
3. The change from the method of submitting application form to submitting curriculum vitae was not voted on by the Instructors.
4. The Company had his curriculum vitae on file already.
4. 1. The introduction of a Higher Scale for instructors was negotiated with the Trade Union representing the majority of instructors in FAS. The process for making appointments by Selection was also agreed with the Union
2. All eligible Instructors were invited to apply for the uplifts by way of a staff notice - the worker did not apply and, therefore, was not considered or called for interview.
3. The fact that a female worker is in receipt of a higher rate of pay than the worker is not a result of her sex but is the result of a collective agreement negotiated with a trade union and applied equally to males and females.
The claimant in his appeal argues that the method of competition for the Higher Scale was unfair and unjust, and that because a female employee is now being paid more than he is paid, for like work, he has been discriminated against.
The original claim was under Section 3(a) and 3(c) of the Anti-Discrimination (Pay) Act, 1974 but following a preliminary hearing with the Equality Officer , it was agreed that the claim would be dealt with under Section 2(B) of the Anti-Discrimination (Pay) Act 197, as “like work” was not in dispute.
The Court having considered the written and oral submissions made by the parties, is satisfied that the procedure followed in introducing the Higher Scale for Instructors, and the process for selection, was as agreed with the Representative Body, and was fair and equitable.
The claimant, in deciding not to follow the procedures laid down for applying for the post, because, as he outlined to the Court, he disagreed with them, eliminated himself from consideration.
In relation to the claimant's arguments that he was discriminated against under Section 2(B) of the Anti-Discrimination (Pay) Act 1974, the Court is satisfied given the history of the appointments, and the fact that 5 males and 1 female the comparator, were appointed, that the different rate of pay being paid to the claimant and the named female comparator is based on grounds other than sex.
The claim, therefore, fails under the 1974 Act and the Court upholds the recommendation of the Equality Officer.
Signed on behalf of the Labour Court
2nd March, 2001______________________
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.