25 Named Female Staff
V
The Irish Aviation Authority
1. DISPUTE
1.1 This dispute concerns a claim by 25 named female employees employed at the Irish Aviation Authority in Aviation Officer Grades I, II and III that they are entitled to receive the same rate of remuneration as that paid to eleven named male comparators employed in various other grades.
2. BACKGROUND
2.1 The CPSU referred a complaint on behalf of one named female employee and 'all our female members in Aviation Officer Grade AOI, AOII and AOIII' to the Equality Service of the Labour Relations Commission on 13th May, 1998 under the Anti-Discrimination (Pay) Act, 1974 citing also Article 119 of the European Treaty (now Article 141) and the Equal Pay Directive (75/117/EEC). The CPSU in subsequent correspondence named a further twenty four female employees on 31st July, 1998. The Director of the Equality Service delegated the case on 22nd October, 1998 to Raymund Walsh, an Equality Officer, for investigation, hearing and decision. In view of the elapsed time since these complaints were first referred to the Labour Relations Commission in 1998 I have given a record of the progress of the case in Appendix 1.
2.2 The present complaints were initially referred under the 1974 Act which has since been repealed and replaced by the 1998 Act. Section 2(1) of the 1974 Act states :
2-(1) Subject to this Act, it shall be a term of the contract under which a woman is employed in any place that she shall be entitled to the same rate of remuneration as a man who is employed in that place by the same employer (or by an associated employer if the employees, whether generally or of a particular class, of both employers have the same terms and conditions of employment), if both are employed on like work.
The complainants are based at IAA facilities in Dublin, Cork and Shannon Airports, Ballygireen, Co Clare and at its Dublin head office while comparators are named throughout those locations with the exception of the head office. The IAA contends that the complainants and comparators are not engaged on like work. The IAA also contends that many complainants and comparators are not located in the same geographical locations and that they could not be held to be in the 'same place' for the purposes of Section 2(1) of the 1974 Act. As I consider this latter issue, which does not arise under the 1998 Act, to be of some practical importance to the ongoing investigation and the extent to which work inspections would be necessary in the various locations, I advised the parties that I would deal with this matter as a preliminary decision while proceeding with the investigation for the period after the coming into operation of the 1998 Act on 18th October, 1999. The IAA contends that the 1974 Act makes no provision for the issue of a preliminary decision and that in so doing I am acting ultra vires and furthermore that the provisions of Section 79 3(A) of the 1998 Act in relation to the power to conduct a preliminary investigation could not extend to the issue of 'same place' as that issue does not arise under the 1998 Act.
3. SUMMARY OF THE CPSU ARGUMENTS IN RELATION TO 'SAME PLACE'
3.1 Article 1 of the Equal Pay Directive provides :
"The principle of equal pay for equal work outlined in Article 119 of the Treaty, hereinafter called "principle of equal pay", means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.
In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex."
The CPSU argues that the right to equal pay enshrined in Article 119 of the Treaty and the Equal Pay Directive does not impose any restriction as to 'place' and that the 1974 Act contravenes the Directive in that respect. The CPSU argues that as state employees, the complainants can rely on the direct effect of the Equal Pay Directive and refers to Defrenne v Sabena (No.2) ECJ Case 43/75 (1976). The CPSU also refers to the European Communities v Denmark ECJ Case 143/83 (1985) where the Advocate General expressed the view that a provision similar to that of the 1974 Act in relation to 'same place' contained in Danish law constituted an infringement of the Treaty. The CPSU also refers to a number of other ECJ cases which it considers support its arguments in this regard i.e. McCarty's v Smith ECJ Case 129/79, Jenkins v Kingsgate ECJ Case 96/80 (1981), Lawrence v Regent Office Care Ltd ECJ Case 320/00 and Marleasing SA v La Commercial Internacional de Alimentacion SA ECJ
Case 106/89 (1990). The CPSU points out that the 'same place' requirement has been omitted from the 1998 Act and states that this is evidence in itself that its inclusion was in contravention of EU law.
3.2 The CPSU argues that pay rates, promotions etc in the IAA are determined centrally and apply though collective agreements to each grade across the Authority irrespective of location and refers to Dublin Corporation v 16 Female Baths Attendants EP/5/1980, PMPA v Two Women Insurance Officials EP/33/1981 and Midland Health Board v Stokes EP/26/1982 where Equality Officers have held that different locations constituted the 'same place' for the purposes of Section 2(1) of the 1974 Act.
4. SUMMARY OF RESPONDENT'S ARGUMENTS IN RELATION TO 'SAME PLACE'
4.1 The respondent states that the only reasonable interpretation of 'same place' in the 1974 Act is that Dublin Airport based complainants may only cite Dublin Airport based comparators, Cork Airport based complainants may cite only Cork Airport based comparators and so on. The IAA argues that anything other than this understanding could not be construed as 'the same place'. The IAA states that would leave the claim under the 1974 Act as follows :
- five claimants may cite only those comparators employed at Dublin Airport
- two claimants may cite only those comparators employed at Ballygireen
- four claimants may cite only those comparators employed at Shannon Airport
- two claimants may cite only those comparators employed at Cork Airport.
Twelve other complainants have no comparators in the same location and cannot be considered under the 1974 Act.
4.2 The IAA refers to the Labour Court determination in North Western Health Board and A Worker (1985) EP 12/1985 where the Labour Court upheld the Equality Officer's finding that Sligo and Portlaoise could not be considered to be the same place for the purposes of the 1974 Act. The Court stated :
"'Place' must mean something less than the entire State as otherwise the confinement of the Act to persons working in the same place and the definition of 'place'as including a city, town or locality would be pointless".
The IAA also refers to two Equality Officer decisions where it was held that different locations were not the same place i.e. Nine Employees v Leaf Ltd EP 10/1988, Twenty Three Employees v ITGWU EP 19/1983 and Six Telephone Officers v Department of Post and Telegraphs v Six Telephone Officers EP 9/1983. The IAA states that in the latter case Cork and Dublin were held not to be in the same place even though a 'national rate' was paid irrespective of location.
4.3 The IAA states that the complainants have not identified any decision of national or EU Courts challenging the validity of the 1974 Act with regard to compliance with the European Treaty of the Equal Pay Directive. The IAA points out that in Murphy v Bord Telecom ECJ Case 157/86 where the High Court sent a reference to the European Court of Justice, neither the Court of Justice nor the Advocate General in his Opinion commented on the 'same place' requirement or suggested that it was not compliant with EU equal pay principles. The IAA also states that in EC v Denmark cited by the CPSU, the complainants refer to the non-binding Opinion of the Advocate General and not the Court ruling. The IAA also states that the ruling of the ECJ in Lawrence v Regent Office Care Ltd referred to by the CPSU is not relevant to the 'same place' issue. The IAA refers also to the contribution of the Minister for Labour to the Seanad Debates (Volume 78 - 5th June, 1974) when the Bill for the 1974 Act was at the Committee Stage in the Seanad (referred to further in 5.2 below).
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 Section 106 of the 1998 Act as amended, makes provision for the investigation under that Act of complainants referred under the 1974 Act which were pending on the commencement of the 1998 Act.
106.-(3) A claim for redress to which this section applies shall-
(a) as regards the substance of the claim -
(i) if or in so far as the claim relates to conduct before the commencement date, be dealt with as if the enactment concerned had not been repealed, and
(ii) in so far as it may relate to conduct after that date, be dealt with under this Act,
and
(b) in all other respects, be dealt with as if it were a claim under section 77.
I am satisfied that Section 106 above provides the statutory basis for this Tribunal's continuing investigation of a complaint referred under the 1974 Act and that my jurisdiction to issue a preliminary decision in relation any matter of law or fact relating to the admissibility of that claim or any part of it stems from Section 106(3)(b) above and Section 79 of the 1998 Act which provides for the issue of a preliminary decision.
5.2 The extract of the Seanad Debates to which the IAA refers relates to a proposed amendment to delete the word 'locality' from the definition of 'place' in the Bill. The proposed amendment was withdrawn however the debate throws some light on what the Minister for Labour and the Government had in mind when Section 2(1) of the 1974 Act was being drafted. The Minister is quoted at one point :
"What is envisaged here is the paying locality and it would be a recognisable jurisdiction in industrial relations procedure. I accept that it is not capable of strict legal interpretation. Our idea is that it should be the one paying region." (395)
"One cannot be explicit in industrial relations matters. The reality of the situation is the pay negotiation region of pay. That is what we have here. There is, as I said, this recourse to the courts in unlikely event that there would be any appeal on a point of law" (396)
......
"It would be our opinion that to any industrial relations tribunal what is intended in this provision would be quite clear. It has therefore the objective that we have set out to achieve in this legislation" (396).
It is quite clear to this Tribunal that a state body which recruits employees centrally, applies common terms and conditions of employment including remuneration
nationally to those employees and then assigns those employees to different locations throughout the state as the need arises, is de facto, operating within its own 'common paying region' as understood by the Minister when the legislation was being passed. I also consider the fact that the Oireachtas has since seen fit to remove any requirement as to 'same place' in the 1998 Act supports that interpretation and insofar as the claim may fall to be considered under the 1998 Act in relation to treatment after 18th October, 1999, the issue of 'same place' simply doesn't arise.
5.3 Regarding the arguments in relation to the direct effect of Article 119 (now 141) of the European Treaty and the Equal Pay Directive (75/117/EEC), the CPSU refers to the Advocate Generals opinion in the European Communities v Denmark (ECJ 143/83 - 1985). I note that the European Court of Justice (ECJ) was not required to make a ruling on the issue of 'same place' in that particular case however the opinion of the Advocate General is supportive of the argument that to impose a restriction as to 'same place' in a national law, which has no foundation in the Treaty or the Directive, is to contravene the principle of equal pay. While the opinion of the Advocate General has no binding effect on a member state I am guided by such an eminent authority in concluding that any interpretation of the provisions of the 1974 Act which attempts to restrict the scope of that Act to persons employed in a particular geographical location within the state in circumstances where payments are determined centrally would be in contravention of Article 119 (141) and the Equal Pay Directive.
6. DECISION
6.1 On the basis of the foregoing, I find that for the purposes of the claim for equal pay submitted by the CPSU on behalf of 25 named female complainants citing comparators in the respondent's employment, some of who are employed in different geographical locations within the state, is a valid claim within the meaning of the 1974 Act and that nothing in that Act, having regard also to the direct effect of Article 119 (141) and the Equal Pay Directive, should be interpreted as restricting a claim by a named complainant to a comparator employed by the respondent in the same location.
Raymund Walsh
Equality Officer
14 February, 2006
APPENDIX 1
Case History
- A preliminary hearing was held on 19th January, 1999
- A further hearing in relation to preliminary issues on 25th June, 1999 at which the CPSU agreed to furnish a submission on matters raised at that hearing.
- On 14th October, 1999 the CPSU indicated that it was seeking legal advice in relation to the 1998 Act and was not yet in a position to complete its submission.
- On 21st July, 2000 the CPSU referred a new complaint under the 1998 Act in relation to the twenty five named employees and this complaint was delegated to the same Equality Officer for investigation and decision along with the 1974 Act complaints.
- A further hearing was scheduled for November, 2000 however this was deferred at the request of the parties who were preparing submissions.
- On 18th July, 2001 the CPSU stated in a letter that the claim was the subject of discussions with the IAA in the context of overall pay negotiations and requested that the investigation be suspended pending the outcome of those discussions.
- On 5th August, 2003 the CPSU requested that the investigation be resumed.
- A further hearing was held on 25th November, 2003 in order to address outstanding preliminary issues including the impact of the different statutory provisions between the 1974 and 1998 Acts with regard to the place of work where equal pay claims are concerned.
- Arising from that hearing I advised the parties that in view of the protracted nature of the case to date I favoured dealing with the matter of place of work under the 1974 Act as a preliminary issue and that I would issue a preliminary decision on this matter.
- The IAA questioned my jurisdiction to issue a preliminary decision under the 1974 Act and I address this matter in this decision.
- Both sides furnished submissions on the issue of 'same place' and a further hearing was scheduled for 19th July, 2005 however this was postponed at the request of the CPSU and held on 28th October, 2005.
- This preliminary decision addresses the matter of 'same place' insofar as the complaints are dealt with under the 1974 Act.