FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : BLACKROCK COLLEGE (REPRESENTED BY MARGUERITE BOLGER B.L. AS INSTRUCTED BY MASON HAYES & CURRAN SOLICITORS) - AND - MARY BROWNE (REPRESENTED BY EMILY EGAN B.L. AS INSTRUCTED BY BCM HANBY WALLACE SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Decision R-044013-Pd-06/Jt
BACKGROUND:
2. The College appealed the Rights Commissioner's decision to the Labour Court on the 3rd November, 2008, in accordance with Section 17(1) of the Protection of Employees (Part-Time) Act, 2001. A Labour Court hearing took place on the 21st January, 2009. The following is the Court's determination:
DETERMINATION:
This is an appeal from the decision of a Rights Commissioner given under the Protection of Employees (Part-Time Work) Act, 2001. The appellant (which is referred to herein as the Respondent) is Blackrock College. The respondent in the appeal (who is referred to herein as the Claimant) is Ms. Mary Browne.
At the hearing of the appeal the Respondent told the Court that, without prejudice to its contention that the Claimant has no cause of action under the Act, it would contend that the difference in treatment complained of is justified on objective grounds. The Court was further told that a considerable body of evidence would have to be adduced to adequately address that point which would involve the parties in significant expense. In these circumstances the Court was asked to deal with the questions of law arising in the case by way of a preliminary determination.
The Court is satisfied that there are substantial issues in this case which involve questions of law. The Court is further satisfied that it can deal with these questions without hearing evidence and by so doing there could be significant savings in time and expense. On that basis the Court agreed to proceed to deal with the questions of law arising in the case and to issue a preliminary ruling on those questions.
What follows is the preliminary determination of the Court on questions of law.
Background
The Claimant is a teacher employed by the Respondent. She is a part-time employee within the meaning of s. 7 of the Protection of Employee (Part-Time Work) Act 2001(the Act). The Claimant brought a complaint before a Rights Commissioner pursuant to s.16 of the Act alleging that she was treated less favourably in respect to her pay and conditions of employment than another teacher who was employed by the Respondent in a full-time capacity. The Rights Commissioner found that the Claimant’s complaint was well founded and directed that“she be awarded a contract of indefinite duration comparable to her colleagues in the full-time staff”
The Respondent appealed that decision to this Court.
The facts
The material facts of this case are not in dispute and can be shortly stated.
The Respondent is a well known private secondary school. The Claimant commenced teaching at the Respondent school on 6th November 2000. Initially she worked three hours and 40 minutes per week pursuant to a fixed-term contract. The Claimant continued to be employed under a succession of fixed-term contracts until 2004 when she was granted a contract of indefinite duration. She continues to be employed in a part-time capacity and now works 14 hours per week. Full-time teachers at the Respondent school work 22 hours per week.
There are a number of teachers engaged at the school who are paid out of the private resources of the Respondent. There are other teachers who are paid by the Department of Education and Science on a scale agreed with the trade unions representing teachers. Teachers who are paid directly by the Respondent, including the Claimant, are remunerated at a lower rate and are afforded less favourable conditions of employment than teachers who are remunerated by the Department of Education and Science.
At the time the within claim was instituted (12th July, 2006) the Claimant was in receipt of a salary of €17,500 per annum. This was increased to €24,000 per annum in September 2006. The Claimant is currently paid a salary of €26,500. A full-time teacher is paid on an incremental scale which increases with service until the maximum point is reached. At the date on which the claim was instituted a full-time teacher who is paid by the Department of Education and Science, with the same service and qualifications as the Claimant, would have been in receipt of a salary of €27,338. Unlike full-time teachers remunerated by the Department of Education and Science, the Claimant is not entitled to sick pay and is not a member of an occupational pension scheme. There are full-time teachers employed by the Respondent who are similarly remunerated from the Respondent’s own resources. The pay and conditions of employment of these teachers are the same as those of the Claimant, adjusted pro rata to reflect the difference in working hours.
Position of the parties
While extensive submissions were made by the parties, the essence of the arguments advances can be briefly summarised as follows:-
The Claimant
In reliance on s. 9 of the Act the Claimant contends that she is entitled to the same pay and conditions (pro rata where appropriate) as a comparable full-time employee. The Claimant contends that a named full-time teacher, who is remunerated by the Department of Education and Science, is a comparable full-time employee against whom her claim must be judged. The Claimant contends that she is entitled to nominate her comparator and the existence of other full-time employees of the Respondent against whom she is not treated less favourably is of no relevance having regard to the provisions of the Act. The Claimant claims, moreover, that there is no objective justification for the impugned differences in treatment.
The Respondent
The Respondent contends that a cause of action only accrues under the Act if a part-time employee is treated less favourable in respect to his or her conditions solely because of their status as a part-time worker. In advancing that submission the Respondent relied upon the wording of the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC appended to Directive 97/81/EC, of 15th December 1997. In particular the Respondent relies upon the wording of Clause 4 of the Framework Agreement which, it submitted, supports the proposition for which it contends.
In so far as there may be a conflict between the import of the Act and that of the Framework Agreement the Respondent seeks to rely on the wording of the directive over that of the Act pursuant to the doctrine of indirect effect of Community law.
The Respondent further contends that the Claimant is not entitled, as a matter of law, to rely on a full-time teacher remunerated by the Department of Education and Science in circumstances in which the Respondent employs other full-time teachers on the same type of contract, and who are similarly remunerated, as the Claimant.
Conclusions of the Court
The law applicable
There is no material conflict between the parties as to the facts of the case. Hence the obligation of the Court is to identify the legal principles applicable and to apply those principles to the agreed factual matrix.
The Act was enacted to give effect to the States obligations under Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC. This is clear from the long title of the Act.
The Directive
Clause 3 of the Framework Agreement defines certain terms and expressions which are used elsewhere in the Agreement. It provides: -
- For the purpose of this agreement:
1. The term 'part-time worker` refers to an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker.
2. The term 'comparable full-time worker` means a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills.
3. Where there is no comparable full-time worker in the same establishment, the comparison shall be made by reference to the applicable collective agreement or, where there is no applicable collective agreement, in accordance with national law, collective agreements or practice.
- Clause 4: Principle of non-discrimination
1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless the different treatment is justified on objective grounds.
2. Where appropriate, the principle of pro rata temporis shall apply.
3. [Not relevant]
4. [Not relevant]
The Act
The general scheme of the Act is to provide that a part-time employee shall not be treated less favourably that a comparable full-time employee in respect to his or her conditions of employment, including pay and pension entitlements. Thus, in order to ground a claim under the Act a part-time employee must first identify a comparable permanent employee against whom he or she claims to be treated less favourably.
A part-time employee is defined in accordance with s. 7(1) of the Act as: -
- “part-time employee” means an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her;
Section 7(2) provides that an employee is a comparable employee in relation to a part-time employee, if: -
- (a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,
(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,
- (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
Section 3 provides for who can be regarded as an employer for the purposes of the Act. It provides: -
- “employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;
The right to equal treatment, for which the Claimant contends, is prescribed by s. 9 of the Act as follows: -
- 9.—(1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.
(2) Without prejudice to section 11 (2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.
(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.
(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.
(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.
- “12.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.
Having regard to these statutory provisions, it appears to the Court that the following questions of law (or mixed questions of law and fact) arise for determination at this juncture: -
1. Are the Claimant and her chosen comparator employed by the same employer or an associated employer or, if not, do the other conditions mentioned in s. 7(2) apply?
2. Is the Claimant entitled to rely on a teacher remunerated by the Department of Education and Science as a comparable employee, notwithstanding the employment by the Respondent of other full-time teachers who are remunerated similarly to the Claimant?
3. Are the Claimant and her comparator engaged in like work?
4. Is the Court required by the doctrine of indirect effect, or otherwise, to construe s.9(1) of the Act as applying only in circumstances where a difference in treatment between a part-time employee and a comparable employee is basedsolelyon the status of the part-time employee?
Are the Claimant and the Comparator in common employment
It is accepted that the Claimant is employed by the Respondent. The comparator is paid his salary by the State through the Department of Education and Science. However it is accepted that the comparator has entered into and works under a contract of employment with the Respondent although the Minister for Education and Science is the paymaster. By application of the definition of “employer” contained at s. 3 of the Act, the Respondent must be regarded as the comparator’s employer for the purposes of the Act.
Is the nominated comparator appropriate
It is accepted that the Respondent employees full-time teachers on the same terms and conditions as those of the Claimant who are paid out of its own resources. The Respondent submits that the Court must look to those teachers in judging the Claimant’s claim. The import of this submission is that the Court must take into account the terms and conditions under which other privately paid teachers are employed and if they are equal to those of the Claimant her case cannot succeed. In advancing that submission the Respondent relies upon the decision of the Supreme Court inNational University of Ireland Cork v Ahern[2005] 2 IR 577.
That case concerned an appeal from this Court in an equal pay claim under the now repealed Anti-Discrimination (Pay) Act 1974. In that case a number of male porters claimed to be employed on like work with female telephonists. It was accepted that while the Claimants and their nominated comparators were engaged in like work, the Respondent contended that there were ground other than gender for the impugned difference in pay. It was claimed that the difference arose from a decision by the Respondent to relieve the Claimants, who constituted a small group of telephonists, from certain duties attaching to their posts so as to facilitate them in fulfilling their family responsibilities. The Supreme Court held that this Court has erred in failing to look at the work performed by the generality of telephonists in considering if there were grounds other than sex for the difference in pay between the claimants and the comparators.
That case was, however, concerned with the application of s. 7 of the Act of 1974 which provided a defence to an equal pay claim where it could be shown that the impugned difference was on grounds other than sex. There is no provision in the Act of 2001 corresponding to s.7 of the Act of 1974. On that basis alone the decision inNational University of Ireland Cork v Ahernis distinguishable from the instant case.
A more apposite decision, for present purposes, is that of this Court inMcArdle and the State Laboratory(Determination FTD063), and the subsequent decision of the High Court on appeal from that decision. InMcArdlethe Court extensively considered arguments on the appropriateness of the Claimant’s nominated comparator similar to those advanced by the Respondent in the instant case.
That case concerned a claim made by an unestablished civil servant employed on a fixed-term contract for equal treatment with an established permanent civil servant with whom she was engaged in like work. The Respondent contended that the Claimants was confined to selecting a comparator on the same type of contract as that on which she was employed, namely that of an unestablished civil servant. As in the instant case the Respondent also raised the related argument that the impugned differences between the treatment of the Claimant and the comparator was related to her status as an unestablished civil servant, rather than her status as a fixed-term worker. It was contended that in consequence the Claimant’s complaint fell outside the ambit of the Act. In rejecting that line of argument the Court had this to say: -
- It is for the Claimant to choose his or her comparator provided they meet the statutory criteria. The only test is whether the Claimant and the comparator are engaged in like work. The purpose of a comparator under the various statutes dealing with discrimination is to demonstrate if a higher value is placed on the same or similar work as that performed by the Claimant when it is performed by another employee having a different gender, characteristic, or status, as the case may be. Hence the determinative considerations are the nature of the work being performed by the two and that one is in a protected category and the other is not. This was made clear by the ECJ in C-129/79Macarthys Ltd v SmithIRLR 210, wherein the Court said:
"[T]he decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing equal work within the meaning of Article 119. That concept is entirely qualitative in character in that it is exclusively concerned with the nature of the service in question.".
- " The plaintiff was entitled to chose her comparator and, having done so, the equality officer was obliged to make a comparison with that person. Accordingly, if paragraph 5.9 of the recommendation showed that the equality officer had not compared the plaintiff with her comparator, but with another, then an error of law would have occurred and the matter would have to be sent back to the equality officer. Ainsworth (appellant) v. Glass Cubes and Components Ltd (respondents) [1977] IRLR 74 applied"
- I can see no error of law in the conclusion of the Labour Court that an established civil servant in the State laboratory, who was engaged in like work with the defendant was a “comparable permanent employee” for the purposes of s.6 because, on the basis of the unchallenged findings of fact made by the Labour Court, such person fulfilled the criteria set out in s.5 for a comparable permanent employee vis-�-vis the defendant as a fixed-term employee. The Act expressly provides that the term “employee” includes an established civil servant. However, I emphasise that the finding made by the Labour Court was for the purposes of identifying the minimum conditions of employment to which the defendant was entitled as a fixed-term employee in accordance with s.6 .
Accordingly, the Court is satisfied that the full-time teacher relied upon by the Claimant is an appropriate comparator for the purposes of advancing her claim provided both are engaged in like work.
Are the Claimant and her comparator engaged in like work
The Respondent does not accept that the Claimant and her comparator are engaged in like work. It points to a number of differences in the terms applicable to privately paid teachers and those paid by the Department in relation to such matters as;-
�The requirement for registration,
�The negotiation arrangements for the respective categories,
�The requirements as to qualifications,
�Probation,
�Access to posts of responsibility, career breaks, job sharing,
�Eligibility for membership of the teachers pension scheme.
While these difference may be of some significance in respect to the contractual terms under which the Claimant and her comparator are employed they do not go to the question of like work. As was pointed out inMcArdlethe existence of like work must be judged solely by reference to the statutory criteria set out at s.7(2) of the Act. Those criteria are concerned with the nature of the work performed and the conditions under which it is performed. In that regard it has consistently been held that the reference to“conditions”is to the physical conditions under which a claimant and comparator work.
Here both the Claimant and her comparator are secondary teachers. While they may not be interchangeable in that they teach different subjects their work is undoubtedly of the same or a similar nature within the meaning of s.7(2)(b) or 7(2)(c) of the Act. Consequently the Court is satisfied that they are engaged in like work within the statutory meaning of that term.
Must the difference be based solely on the Claimant’s status
The question posed by this aspect of the case is closely allied to that of the appropriateness of the comparator in that they both relate to the availability of a defence grounded on the existence of reasons other than the status of the Claimant as a part-time worker to explain an impugned difference in treatment. The Respondent submitted that were s. 9(1) to be construed literally it would mean that part-time privately paid teachers would be entitled to claim equal pay and conditions of employment against full-time teachers paid by the Department but that full-time privately paid teachers could have no such right. It was submitted that this would result in declining opportunities for part-time work and that this would run counter to one of the objectives of the Framework Agreement.
Ms Bolger B.L rightly pointed to the wording of Clause 4 of the Framework Agreement which appears to prohibit discrimination against part-time employees which issolelybecause they work part-time. It was submitted that s.9 of the Act should be construed in harmony with this provision of the Framework Agreement with the result that if the less favourable treatment complained of was influenced to any degree by status neutral considerations a full defence would be afforded to the employer. The Court cannot accept that submission for a number of reasons. (Questions relating to the application of the doctrine of indirect effect of Community law, which arise in this context, will be considered separately in this determination).
What is at issue here is the true construction of s.9 of the Act. It is well settled that in construing a statutory provision the duty of the Court is to ascertain the intention of the Oireachtas from the words and expressions used in the statute. While there are modern developments toward other techniques the literal approach is still the preferred method of interpretation. Thus in Cork County Council v Whillock [1993] 1 IR 23, O’Flaherty J. stated, at 237,: -
- “…..it is clear to me that the first rule of construction requires that a literal construction must be applied. If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences”
- “5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—
(b)that on a literal interpretation would be absurd or would fail to reflect the plain intention of—
(i) in the case of an Act to whichparagraph (a)of the definition of “Act” insection 2(1)relates, the Oireachtas, or
(ii) in the case of an Act to whichparagraph (b)of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole”
However, on a literal construction, s. 9(1) of the Act does not provide part-time employees with an unqualified right to equal treatment. The right conferred is qualified by s.9(2). This section provides, in effect, that a part-time employee may be paid less and afforded less favourable conditions of employment than a comparable full-time employee if the difference is justified on objective grounds. Section 12 of the Act provides that the objective grounds relied upon must not relate to the fact that the employee is engaged in part-time work. Thus it is open to an employer to avoid liability under the Act by showing that a difference in treatment is based on considerations which are unrelated to the part-time status of the person concerned provided the reasons relied upon provide objective justification for the difference in treatment.
If the construction of s.9 of the Act canvassed on behalf of the Respondent were to be accepted it would mean that the existence of any status natural reason for a difference in treatment between part-time and full-time employees would, if genuine, provide a full defence to any claim under the Act. If that were so s.9(2) and s.12 of the Act would be superfluous. Moreover, if the Oireachtas intended to provide a defence equivalent to that of“grounds other then sex”in equality law it could have easily done so in express terms. It would be a trespass upon the legislative domain for this Court to interpret the section by adding to the words used by the Oireachtas so as to import a limitation on the application of the rights conferred by the statute which is not provided for by the plain language of the text.
In any event the proposition that an employer can avoid liability under the Act by showing that an impugned difference in treatments is grounded on a status neutral consideration was rejected by the High Court inMcArdle. As has previously been pointed out in this Determination, the status of the Claimant in that case as an unestablished civil servant was relied upon as the primary reason for the difference in treatment of which she complained. Leffoy J. did not consider this to be a relevant consideration.
Doctrine of Indirect Effect – The Interpretative Obligation
If, by the application of the ordinary domestic law cannons of interpretation, s.9(1) cannot be construed as meaning that the impugned difference in treatment must be based solely on the status of the Claimant as a part-time employee the question arises as to whether such an construction is required by Community law.
The obligation on National Courts to use statutory interpretation as a tool in ensuring the supremacy of European law was first identified by the ECJ in Case 14/83Von Colson and Kamann v Land Nordrhein-Westfalen[1984 ]ECR 1891.In that case, having held that the provision at issue was not capable of having direct effect, the Court of Justice went on to adumbrate, at paragraph 26, the interpretative obligation on National Courts:
However , the member states ' obligation arising from a Directive to achieve the result envisaged by the Directive and their duty under Article 5 of the Treaty to take all appropriate measures , whether general or particular , to ensure the fulfilment of that obligation , is binding on all the authorities of Member States including , for matters within their jurisdiction , the courts . It follows that, in applying the National Law and in particular the provisions of a National Law specifically introduced in order to implement Directive no 76/207, National Courts are required to interpret their National Law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189 .
- InVon Colsonthe Court limited the obligation to interpret nationallaw harmoniously with Community law to situations in which the national Court is given discretion to do so. It will be recalled that the formulation of this limitation was subsequently modified by the Court inMarleasing S.A. v La Commercial Internacional de Malimentacion S.A. [1990] ECR 4135, where the Court held that the obligation was to interpret national law“as far as possible”in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter. This latter formulation has since been consistently used by the Court of Justice and was used most recently in Case 268/06,IMPACT v Minister for Agriculture and others,[2008] IRLR 552, in which it said, at paragraphs 98 and 99: -
- “In that regard, when applying domestic law and, in particular, legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, national courts are bound to interpret that law, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result sought by it and thus to comply with the third paragraph of Article 249 EC (see, in particular, Pfeiffer and Others, paragraph 113 and the case-law cited).
The requirement that national law be interpreted in conformity with Community law is inherent in the system of the EC Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of Community law when they determine the disputes before them (see, inter alia, Pfeiffer and Others, paragraph 114, and Adeneler and Others, paragraph 109).”
. - “In that regard, when applying domestic law and, in particular, legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, national courts are bound to interpret that law, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result sought by it and thus to comply with the third paragraph of Article 249 EC (see, in particular, Pfeiffer and Others, paragraph 113 and the case-law cited).
The relevant provision of the Framework Agreement provides: -
- In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless the different treatment is justified on objective grounds.
The approach of the Court of Justice in interpreting Community legislation was adumbrated in case Case 283/81 SrlCILFIT and Lanificio di Gavardo SpA v Ministry of Healt[1982] ECR 3415 as follows: -
- 18 To begin with, it must be borne in mind that community legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of community law thus involves a comparison of the different language versions.
19 It must also be borne in mind, even where the different language versions are entirely in accord with one another, that community law uses terminology which is peculiar to it. Furthermore, it must be emphasized that legal concepts do not necessarily have the same meaning in community law and in the law of the various member states.
20 Finally, every provision of community law must be placed in its context and interpreted in the light of the provisions of community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.
It seems much more likely that the Clause 4(1) of the Framework Agreement should be construed as meaning that a defence of objective justification, which is clearly provided for, cannot be grounded solely on a person’s status as a part-time employee. However the Court expressly reserves it position on this point.
It is, however clear from the authorities that the interpretative obligation in Community law only arises where national legislation would otherwise fail to achieve the result pursued by a Directive. Even if Clause 4(1) of the Framework Agreement is to be construed in the manner contended for by the Respondent, the fact that the Act may go further than is required (and the Court makes no finding on this point) does not mean that it fails to achieve the result pursued by the Directive. Clause 6 of the Framework Agreement makes it clear that Members States are free to provide better protection than that which it prescribes. Consequently, if the Oireachtas has gone further than is required it could not be said that the Directive has been improperly transposed on that account or that it has failed to achieve the objective pursued by the Directive.
Conclusion.
For the reasons set out in this Determination the Court finds as follows: -
1. The nominated comparator is a comparable employee vis-á-vis the Claimant
2. The Claimant and the comparator are engaged in like work for the purpose of the Act.
3. The Claimant is entitled to succeed in her claim unless the impugned differences is justified on objective grounds.
The Court will now proceed to hear the parties on the question of objective justification.
Signed on behalf of the Labour Court
Kevin Duffy
2nd February, 2009______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.