Welsh AND De Beers Industrial Diamonds Ltd (Represented by IBEC)
1.1 This dispute concerns a claim by Mr Eamon Welsh, employed as a security officer by De Beers Industrial Diamonds Ltd, that he is entitled to the same rate of remuneration as that paid to four named female comparators, employed by the company as shift operators, in accordance with the provisions of section 19 (1) of the Employment Equality Act, 1998.
1.2 The complainant referred a claim to the Director of Equality Investigations on 7 February 2001 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 22 February 2001 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 15 August 2002. Subsequent correspondence with the parties concluded on 29 August 2002.
2. THE COMPLAINT
2.1 The complainant's case was referred under the provisions of section 19 (1) of the Act which provides It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
Section 18 states that "A" and "B" represent two persons of the opposite sex so that, where "A" is a woman, "B" is a man, and vice versa.
2.2 Section 19 (5) of the Act provides that
...nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.
2.3 In relation to the investigation of claims for equal pay, the Act provides at section 79 (3) that
If, in a case which is referred on the ground that the complainant is not receiving equal remuneration in accordance with an equal remuneration term, a question arises whether the different rates of remuneration to which the case relates are lawful by virtue of section 19 (5)...the Director may direct that that question shall be investigated as a preliminary issue and shall proceed accordingly.
2.4 Such a question arose in this claim, and I therefore proceeded on the basis of investigating whether the different rates of remuneration were justified on grounds other than gender. Whether like work existed between the complainant and the comparators was therefore not at issue during the investigation and work inspections were not carried out.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant was employed as a security officer in the Security Department of the respondent company. The Department was staffed by a Manager, a Supervisor and fourteen security officers. The complainant, and the other security officers, worked a four cycle shift covering twenty-four hours per day, 7 days per week and 365 days a year. He claimed that their salaries did not provide for shift allowance or compensation for weekend work. He also claimed that they did not receive the premium for overtime work which other employees received.
3.2 All shift operators, including the female comparators, were paid a shift allowance of either 16.66% or 20% in addition to basic pay, depending on the shift cycle worked. The comparators worked a three cycle shift covering five days per week, from 08.00 to 16.00, 16.00 to 23.59 or from 23.59 to 08.00. In addition to their basic salary, they received a shift allowance of 20% of basic pay. This shift allowance was carried through to calculation of overtime, so that when the comparators were required to do overtime, they were paid the appropriate premium rate (ie 1.5 times basic pay) plus 20%.
3.3 The complainant pointed out that two members of the Security Department were engaged in shipping duties, which involved them working straight days, Monday to Friday. These two security officers received the same rate of pay as the complainant, without the obligation to work unsocial hours. They were free to work weekend overtime on fifty-two weekends per annum, as were the comparators, while the complainant was available to do this for only twenty-five weekends because of his shift cycle. One security officer had transferred from the shift operator grade to the Security Department, which was theoretically an upgrade from F1 to E. However, he had been paid less because of the loss of the shift allowance and his unavailability for overtime.
3.4 Salaries in the company were based on job evaluations, which the complainant claimed were last updated in 1977, and which he stated did not take account of the unsocial hours worked by him. The complainant was graded more highly on the job evaluation, which meant that his basic salary was higher, but the application of the shift allowance meant the comparator grade earned more. The security officers were graded as E, which was remunerated at the maximum of £32,309.76 (at April 2001). The comparators were graded F1 on the job evaluation, for which the maximum at April
2001 was £27,863.13 plus 20% shift allowance which amounted to £5,572.63. The complainant also pointed out that the evaluations were carried out at a time when there were 27 security officers employed. Since then, the staff had been reduced and new techniques introduced. The complainant was now doing more work with no corresponding increase of pay.
3.5 The complainant stated that several of the security officers had employment contracts which stated, inter alia, "your salary, including shift disturbance allowance, will be £X per annum". When the company was asked to breakdown the shift allowance allegedly being paid and show it separately on their payslips, it refused. The shift operators' payslips showed the shift allowance separately. The complainant asserted that this failure to provide a breakdown was contrary to the provisions of EU Directive No 91/533/EEC of 14 October 1991, incorporated into Irish law by way of the Terms of Employment (Information) Act, 1994.
3.6 The complainant acknowledged that this matter had been unsuccessfully referred to the Labour Court on two occasions under the Industrial Relations Acts, 1946-1990. He argued however that there had been no females employed as shift operators at the time, and a claim of gender discrimination had therefore not been open to him.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent said that it had a permanent workforce of 538, and a temporary workforce of 109, employed in the synthesis, processing and distribution of industrial diamond and related products. A company re-organisation being carried out during the investigation of these claims resulted in the privatisation of the security function, with the consequent redundancy or redeployment of all of the security officers. The complainant had been made redundant by the time of the hearing.
4.2 The company noted that the complainant had named four female shift operators as comparators, but it pointed out that of 178 shift operators employed, just six were female. That is, 96.6% of the employees in the comparator grade were of the same gender as the complainants. The respondent claimed that this meant that the difference in pay between the complainant and the comparators could not be based on gender. It further claimed that a claim of indirect discrimination could not arise since the group with which the comparison was being made was predominantly male.
4.3 In support of these arguments, the respondent referred to the Labour Court determination in Dunnes Stores v Mandate (DEP 12/98), in which females employed as Canteen/Cleaning staff sought equal pay with males employed as Sales Assistants. The Court approved an Equality Officer finding that the fact that the comparators were a group of only six males out of 24 Sales Assistants meant that the difference in pay could not be based on the sex of the workers. The Court said The differential in pay between the claimants and the male comparators cannot be based on the sex of the male comparators if the comparators are a minority of male workers among a group doing 'like work' with
each other who are mostly female.
4.4 Regarding the issue of the shift premium, the respondent denied that discrimination had occurred. It pointed out that the issue had twice been referred to the Labour Court, and said that on each occasion the Court had concurred with the respondent's argument that the complainant's remuneration was inclusive of shift disturbance allowance.
4.5 The respondent argued that the shift requirements of the security officers was taken into account in the job evaluations. It was included in the value ascribed to "working conditions", was a significant element of the evaluation and the security officers were appropriately remunerated for this. It stated that security officers were also compensated for weekend work, with rest days built into their roster. The complainant, as with the comparators, was entitled to overtime payment where he worked on rest days.
4.6 The respondent said that this was a gender-based claim, and not an industrial relations issue. The complainant had to prove that the comparators received preferential treatment because they were female. Up to three or four years ago there had been no females employed as shift operators, so the salary scales could not be based on gender.
5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
5.2 The complainant referred to several issues, including the shift allowance, overtime rates and payment on promotion or transfer. It would appear that the single factor common to all of these aspects was the application of the shift allowance to the salaries of the comparators. Because the allowance was taken into account in calculating their overtime, and because they would not receive the allowance if they transferred to the security department, the complainant said he was at the loss of this amount.
5.3 The respondent referred to the Labour Court recommendations as support of its claim that the complainant's remuneration was inclusive of shift allowance. It disputed the complainant's assertions regarding overtime and promotion pay, and said that the complainant was paid overtime in the same way as other staff and that pay on promotion is calculated in the same way for all staff. Any staff member transferring to another position would receive the going rate for the new job
5.4 The EU Directive referred to by the complainant was transposed into Irish law by way of the Terms of Employment (Information) Act, 1994. Section 3 (1) of the Act states
An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment...
(g) the rate or method of calculation of the employee's remuneration,...
It would appear from this that an employee is entitled to receive a complete breakdown of his or her salary. The respondent argued that the shift allowance was incorporated into the complainant's salary, but the complainant provided me with a copy of a security officer's pay slip and a shift operator's payslip. It was clear from examination of the payslips that the shift operators had a 20% premium added to basic salary, while the security officers did not. The operation of the 1994 Act is outside my jurisdiction, but it is not apparent to me that the complainant was receiving the detailed information that the Act specifies. If the shift allowance was in some way part of the security officers' salary, then it should be separately listed. Since it was not listed, it appears to me that the complainant did not receive a shift allowance.
5.5 The respondent pointed out that the issue had been twice rejected by the Labour Court, which it said concurred with the view that the complainant's remuneration was inclusive of shift allowance. The two Labour Court recommendations are attached as Appendices I and II, and having studied the documents I am not persuaded that this is the case. In the first recommendation, the Court stated that it did "not find that grounds exist which would justify payment of the shift premium claimed...". On the second occasion, the Court said it did "not recommend concession of the Union's claim". In neither determination did the Court state that it found that the complainant's remuneration was inclusive of the shift allowance.
5.6 It may be useful to point out that the fact that the Labour Court has previously rejected a claim under the Industrial Relations Act, 1946 to 1990 does not necessarily have a bearing on whether such a claim should be unsuccessful when referred to the Equality Tribunal under the terms of the Employment Equality Act, 1998. These are two separate and distinct pieces of legislation, with different requirements and different elements to be taken into account.
5.7 In terms of the 1998 Act, the relevant factor in this claim is whether the complainant can demonstrate that the differences in salary between in him and his female comparators is based on gender. It is a fact that women have been employed in the shift operator grade only for the last few years. When women first entered that grade, they received the going rate for the job. It is clear that the salary cannot have been determined on gender grounds, and therefore direct discrimination on that ground cannot have occurred. It is also a fact that males constitute 96.6% of the shift operator grade, and an allegation of indirect discrimination on gender grounds cannot be upheld.
6.1 Based on the foregoing, I find that De Beers Industrial Diamonds did not discriminate against Mr Eamon Welsh on the basis of his pay in terms of section 19 of the Employment Equality Act, 1998.
19 February 2003
The Labour Court
Industrial Relations Acts, 1946 to 1976
Recommendation No 50 97
Parties: De Beers Industrial Diamond Division (Irl) Ltd (Represented by the Federated Union of Employers) and Irish Transport and General Workers' Union
1. Claim on behalf of 20 security officers for the payment of a shift premium of T + onefifth.
2. The Company maintains a security force on a seven-day, 24-hour cover at its plant in the Shannon Industrial Estate. In 1973, the Company undertook an assessment of the jobs of the workers here concerned and engaged the services of an independent consultant. As a result of this assessment the workers were regarded on to scale F1. The Union subsequently contended that the remuneration attaching to the new grade did not include compensation for shift work.
3. The Union first submitted a claim, inter alia, for payment of a separate shift allowance early in 1976. Local negotiations took place between the parties and the Company offered a package deal in settlement of all the claims, although it did not make any offer on the question of a shift payment as it contended that shift working was compensated for in the basic rate. The Union accepted the offer but still maintained that the F1 scale did not include compensation for shift work. Following further discussions and an appeal to the Company's Job Evaluation Appeals Committee, the workers were regraded to scale E. Their current rate of pay is £3,425 - £5,053 (9 points) per annum. Discussions continued on the claim for a shift premium but as agreement could not be reached either at local level or at conciliation, the case was referred to the Labour Court for investigation and recommendation.
4. (a) Early in 1972 all employees were upgraded to staff status. As a result, each employee underwent assessment and grading in accordance with the terms of a job evaluation scheme (details supplied). The scheme did not mention shift working as a characteristic of conditions of employment. Therefore, it was not taken into account as an integral part of the workers' conditions of employment.
(b) The rate at 31st December, 1978 for scale E was £62.82 per week - £92.67 per week (nine increments). Considering the length of service required to reach the maximum point, the rates are not extraordinary, especially when compared with Aer Rianta, whose rates for
security personnel range from £76.13 to £90.45 after seven years' service for class II and £79.28 to £93.72 for class I. If normal week-end and overtime supplements and shift payments are added to those rates, it is clear that the workers here concerned are considerably worse off.
(c) Other workers in the Company who are at present graded on the E Scale work shift hours and receive a shift premium. There is no reason why the workers here concerned should be treated any differently.
(d) The total number of security officers employed in 27. Seven of these operate on an all-day-work situation thus creating a further anomaly whereby workers performing the same duties are paid similar rates even though one group is required to work a shift system.
(e) The work-cycle of the workers here concerned covers a period of six weeks (details supplied). Compensation should be given for the disadvantages associated with these unsocial hours.
(f) The Company has stated that the Union accepted the position in March, 1976 by agreeing to an overall package which gave improvements in general conditions. However, it is the Union's contention that two and a half years have elapsed since that agreement and that shift payments in industry generally have changed dramatically since then. If shift work is compensated for in the basic rate, the Company has never outlined the payment as a percentage of that rate.
5. (i) Each worker is appointed in accordance with the terms of an employment agreement, (details supplied), which clearly states that the appointment to the grade of security officer is conditional on the performance of shift work and that the salary paid is inclusive of compensation for the shift work.
(ii) The Union has always recognised this to be the case but since the introduction of the job evaluation scheme it has claimed that the basis for payment within the scheme does not include compensation for shift work. If, as was recognised by the Union, the salary included such compensation before the introduction of the scheme then it must do so
following the introduction of the scheme.
(iii) The Union accepted a package from the Company in March, 1976 in settlement of a dispute over various issues including the one concerned here. The Union has acknowledged that the Company made no offer on this issue but nevertheless the Company's position has always been that the settlement was a package and that shift work could not be compensated for outside the basic rate.
(iv) The company operates a salary structure based on job evaluation which is constantly under review and any alteration on an ad hoc basis would disturb the established structure.
(v) Under the job evaluation scheme the job of security officer was assessed on the highest common denominator because of the flexibility and duties within the grade. Following the assessment, the grade was assigned a scale of pay and where no actual rate of pay on this scale existed it was put on to the next highest point. It is clear that if the shift allowance was in the original pay structure it must still be in the new scales.
6. Having carefully considered all the factors submitted in the evidence, the Court does not find that grounds exist which would justify payment of the shift premium claimed in addition to the rates of pay, etc. enjoyed by the claimants. The Court, accordingly, does not recommend concession of this claim.
By Order of the Labour Court
(Signed) B Quirke
20th March 1979 Officer of the Court
Recommendation No LCR15742
Industrial Relations Act, 1946 to 1990
Section 26 (1), Industrial Relations Act, 1990
Parties:De Beers Industrial Diamond Division (Ireland) Represented by the Irish Business and Employers' Confederation And Services Industrial Professional Technical Union
1. Application of shift premium to security staff.
2. The Company was established at Shannon in 1961 and employs a workforce of approximately 535 in the manufacture, processing and distribution of industrial diamond and related products. The Company employs its own security personnel directly and the security department comprises a a manager, a supervisor and 14 security officers (including 2 drivers), of whom 12 are involved in this dispute. Security officers are at Grade E (following a job-evaluation) which attracts a salary of £15,662 to £20,986. They work a 38.75 hour week and receive fringe benefits including a 10% guaranteed bonus. The Union is seeking the application of a shift premium on behalf of the 12 on the grounds that they work a variation of the 4-cycle shift. The Company has rejected the claim stating that it is in breach of Partnership 2000 (P2000) and also that, in accordance with the claimants' employment contract, the shift allowance is already incorporated into their salaries. The Company also claims that the issue was dealt with in a previous Labour Court Recommendation (LCR 5097). The dispute was the subject of a conciliation conference under the auspices of the Labour Relations Commission, at which agreement was not reached. The dispute was referred to the Labour Court, on the 20th of August, 1997, in accordance with Section 26 (1) of the Industrial Relations Act, 1990. The Court carried out its investigation, in Limerick, on the 17th of December, 1997.
3. Notwithstanding an agreed package settlement following a claim by the Union to improve pay and conditions for Security Officers in 1976, the Union again submitted a claim for the upgrading of the Security Officer positions in 1977, to include a shift allowance payment. Following the Union's rejection of Company proposals, this exact same claim was adjudicated on by the Labour Court in 1979. In its previous recommendation on this issue, the Court stated that it did "not find that grounds" existed "which would justify payment of the shift premium claimed in addition to the rates of pay, etc., enjoyed by the claimants". The Court, accordingly, did not recommend concession of the claim. In view of the fact that this matter has already been adjudicated on by the Labour Court, which found in accordance with the contracts of employment, as applied by custom and practice, the Company sees no basis for concession at this stage.
4. It is clear that the existing security officer salary in inclusive of shift. As such, their claim is essentially a claim for a wage increase over and above the terms of P2000 which stipulates that "no cost-increasing claims by trade unions or employees for improvements in pay or conditions of employment will be made or processed". This Company is a party to the terms if P2000 and has already applied the first phase of this agreement. As the Union is also a party to this agreement, it should, likewise, abide by its terms.
The Court, having considered the written and oral submissions made by the parties, and the history of this case, does not recommend concession of the Union's claim.
Signed on behalf of the Labour Court
8th of January, 1998