EQUALITY OFFICER'S DECISION NO: DEC-E/2009/085
25 NAMED EMPLOYEES
(REPRESENTED BY CIVIL & PUBLIC SERVICE UNION)
IRISH AVIATION AUTHORITY
(REPRESENTED BY A&L GOODBODY - SOLICITORS)
File No: EE/2000/55-79
Date of issue 6 October, 2009
Headnotes: Anti- Discrimination (Pay) Act, 1974 - sections 2 and 3 -Employment Equality Acts, 1998-2007, section 7 and 19 - equal pay - like work- gender- grounds other than gender - burden of proof
This dispute involves claims by twenty-five named female complainants (Appendix 1) that they perform "like work" in terms of (i) sections 3(a), (b) and (c) of the Anti-Discrimination (Pay) Act, 1974 and (ii) sections 7(1)(a), 7(1)(b) and 7(1)(c) of the Employment Equality Act, 1998 with eleven named male comparators (Appendix 2) and are therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with sections 2 and 19 respectively of those Acts.
2.1 The complainants were employed as Aviation Officers (Grades I, II and III) at four separate locations. Their trade union referred a complaint to the Equality Tribunal on their behalf on 12 May, 1998 - further details of which were provided on 31 July, 1998 -contending that they performed "like work" with the named comparators - who were employed as Radio Officers III, Technical Officers II and Air Traffic Control Officers III at a number of locations - in terms of section 3 of the Anti-Discrimination (Pay) Act, 1974 and consequently they were entitled to the same rate of remuneration as that paid to those named comparators in accordance with section 2 of that Act. The union submitted an identical complaint under the Employment Equality Act, 1998 on 21 July, 2000 in respect of the period following enactment of that statute. In accordance with her powers under the Acts the Director delegated the complaints to Mr. Raymund Walsh , Equality Officer, for investigation and decision. A number of issues arose in the course of Mr. Walsh's investigation and he decided to address one of these - whether or not the complainants and comparators were employed in the "same place" for the purposes of section 2 of the Anti-Discrimination (Pay) Act, 1974 - as a preliminary matter under the Employment Equality Act, 1998. The Equality Officer issued his Decision on 14 February, 2006 finding in favour of the complainants on the preliminary issue. In doing so he held that the complainants could cite comparators from other locations around the country for the purposes of that element of their equal pay complaint which was governed by the Anti-Discrimination (Pay) Act, 1974.
2.2 The respondent appealed this Decision to the Labour Court and that Court issued its Determination on the appeal on 6 February, 2007, upholding the Decision of the Equality Officer. However, Mr. Walsh was transferred from the Tribunal and the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer, for investigation and decision and the exercise of other relevant functions of the Director under Part VII of the Employment Equality Acts, 1998-2007. My investigation on the complaints commenced on 10 August, 2007, the date on which the complaints were delegated to me. Notwithstanding the fact that the respondent appealed the Labour Court Determination to the High Court on a point of law, a Preliminary Hearing on the complaints was held in this Tribunal on 11 December, 2007. At this Hearing the respondent disputed the existence of "like work" between the complainants and comparators and notwithstanding this, argued that the rates of remuneration paid to them were lawful by virtue of section 2(3) of the Anti-Discrimination (Pay), 1974 and section 19(5) of the Employment Equality Act, 1998.
2.3 The Equality Officer was of the view that section 106 of the Employment Equality Acts, 1998-2007 provided him with the legal basis to investigate the question of whether or not the rates of remuneration paid to the complainants and comparators were lawful by virtue of section 2(3) of the Anti-Discrimination (Pay), 1974 and section 19(5) of the Employment Equality Acts, 1998 for the entire period for which equal pay was being claimed (which included periods before and after the coming into force of the Employment Equality Act, 1998) and he decided to investigate this question as a preliminary issue in accordance with section 79(3) of the Employment Equality Acts, 1998-2007. A Final Hearing was held on 22 July, 2008. Issues arose at the hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties. This process concluded in late February, 2009.
3. SUMMARY OF RESPONDENT'S CASE
3.1 The respondent disputes the existence of "like work" between the complainants and comparators and notwithstanding this, contends that the rates of remuneration paid to them are lawful by virtue of section 2(3) of the Anti-Discrimination (Pay), 1974 and section 19(5) of the Employment Equality Acts, 1998-2007, as necessary. The respondent seeks to rely on the principle established by the Supreme Court in NUI Cork v Ahern & Others where it submits the Court held that complainants in equal pay cases could not "cherry pick" comparators to demonstrate the most favourable view of their claim. Instead the Court held that the correct approach was that the complainants must be compared generally with the comparator grades in their entirety. The respondent argues that this approach also applies in determining whether there are grounds other than gender for any pay differential and submits that this Tribunal must have regard to the grades in general and consider the qualifications, training and knowledge required as a pre-requisite to securing employment in the comparator posts and then contrast that to the very different pre-requisites that apply to the complainants' grades.
3.2 The respondent states that the complainants are employed as Aviation Officer Grades I,II or III and that these grades replaced the civil service grades of Staff Officer, Clerical Officer and Clerical Assistant respectively. It adds that all of these grades perform duties which are wholly clerical or administrative in nature and that none of the complainants requires any technical and/or professional qualifications, training or knowledge in order to perform the duties associated with their jobs. It states that prior to vesting day of the Irish Aviation Authority (1 January, 1994) the educational requirement for appointment to the post of Aviation Officer Grade II and III (which were the entry grades) was Junior Certificate level, although appointments were handled following an open competition by the then Civil Service Commission. The educational requirements for these grades after vesting day is Leaving Certificate. The respondent states that seventeen of the complainants were transferred to it on vesting day and the remainder were recruited after that date.
3.3 The respondent states that by contrast with the complainants' posts, the comparators' posts are technical in nature and highly specialised. Entry to the posts and day to day operation of the duties attached to them requires specified technical qualifications, training and knowledge. The respondent adds that the comparators are also subject to rigorous on-going training and assessment, including compulsory medical assessments for Air Traffic Control Officers. In the case of Technical Officers the respondent states that pre-1994 appointees to the posts were required to have third level qualifications in telecommunications and electronics to at least diploma level and practical experience in the maintenance of electronic equipment. Since vesting day applicants must have a primary degree in electronic/electrical engineering (or a related discipline) and have relevant experience in communications/navigation systems. In addition all Technical Officers are given general training in the respondent's air traffic, navigation and communication systems and must pass a competency test at the end of the training period. More specialised training is conducted at different levels depending on the domain to which the Technical Officer is assigned. The respondent adds that the provision of air navigation services is governed by the Chicago Convention, agreed by the International Civil Aviation Organisation, which is a UN based global body setting down standards for such services and it is also heavily regulated at European level by a number of EU Regulations and Directives. It states that one of these Regulations laying down common requirements for the provision of air navigation services obliges the respondent to ensure that the technical personnel operating equipment approved for air traffic management have and maintain, on an on-going basis, the skills and competencies necessary to discharge their duties. Failure by the respondent to comply with this requirement may result in removal of the personnel involved and in extreme circumstances, the suspension of the respondent's licence to provide air navigation services by the competent national authority appointed by the Minister in accordance with the EU instruments following audit by the competent authority. It states that it has been the subject of 3/4 such audits since vesting day.
3.4 The respondent states that Air Traffic Control Officers (ATCO) require Leaving Certificate standard education. It adds that ATCO's undergo extensive initial training and must undertake on-going training during employment. The respondent adds that the training processes operated for ATCO's changed in 1997 and that all of the comparators were recruited under the pre-1997 system. This process involved the initial recruitment of the comparators as Air Traffic Control Assistants (ATCA) for the specific purposes of subsequently competing for a post as Air Traffic Control Officers. During this period staff had to pass a significant number of oral, written and simulation tests. Failure to pass these examinations resulted in termination of the ATCA's services. On appointment to ATCO the comparators received further "on the job" training and were required to achieve an appropriate rating qualification. In 1997, following an internal review, the respondent moved to a new programme of training which involves an intensive modular based process covering six months. As previously, failure to achieve the appropriate pass mark in each of the modules prevented appointment as an ATCO. A further period (14 weeks) of "on the job" training follows with a final check-out assessment by a formal Air Traffic Control Competency Examiner. The respondent states that ATCO's were always subject to licensing under the Chicago Convention. It adds that in Ireland there is a statutory obligation on licensing ATCO's since 2000 and moreover the matter is now addressed at European level .
3.5 The respondent states that Radio Officers require a third level qualification in an appropriate discipline (electronics) and must also hold a valid Maritime Radio Communications General Certificate. In addition that must have a satisfactory knowledge of the general principles of Magnetism and Electricity and the theory of Radio Telephony and Radio Telegraphy (as demonstrated by regular written, theory and practical examination). It adds that all Radio Officers undergo induction training for the aeronautical radio service and then completed a period of "on the job" training under the supervision of an experienced Radio Officer. They must also complete on-going training each year as necessary. The respondent states that there has always been a requirement for Radio Officers to be licensed under the Chicago Convention and adds that there is a statutory requirement in Ireland for such a requirement since 2000 .
3.6 The respondent submits that the requirement for two of the comparator groups to have a specialised third level qualification and for all three groups to undergo extensive periods of training, to acquire, perfect and maintain a particular level of knowledge, all underpinned by international, EU or national obligations, constitute genuine grounds unconnected with gender which render lawful any differences in the rates of pay. In this regard it seeks to rely on the ECJ judgement in Angestelltenbetriebsrat der Wiener Gebietshrankenkasse v Wiener Gebietshrankenkasse where the ECJ held, notwithstanding that the complainant and comparators groups (psychologists and medical doctors employed as psychotherapists) performed similar tasks, the comparator group was qualified to perform other tasks, on the basis of their specific qualifications and they could not be regarded as being in a comparable situation and the phrase "same work" was not applicable. The respondent also refers to the ECJ judgement in Handels -og Kontorfunktionaeretnes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss and submits that the Court of Justice held that a difference in remuneration may be justified by reference to the training requirements necessary to perform the tasks associated with a post. The respondent adds that the ECJ adopted the same view in the Royal Copenhagen holding that training requirements constitute a factor which can be taken into account when deciding whether a difference in remuneration is based on grounds other than gender. The respondent also refers to the Recommendation and Determination of the Equality Officer and the Labour Court respectively in The Department of Tourism and Transport v 3 Workers where it submits both the Equality Officer and the Court held that the difference in treatment was lawful as it was based on the qualifications for the posts. Finally, the respondent refers to the Determination of the Labour Court in Department of Justice Equality and Law Reform v CPSU and submits that Court accepted that the practice of deploying Gardaí in clerical posts (which ultimately resulted in a pay differential) corresponded to a real operational need of the force and requiring those posts to be filled by serving police officers who had specialist training and/or knowledge was justified. It adds that such a requirement exists in the case of the comparators and therefore any differential in remuneration is lawful in terms of the Acts.
4. SUMMARY OF COMPLAINANTS' CASE
4.1 The complainants submit that they perform "like work" " in terms of (i) sections 3(a), (b) and (c) of the Anti-Discrimination (Pay) Act, 1974 and (ii) sections 7(1)(a), 7(1)(b) and 7(1)(c) the Employment Equality Act, 1998 with eleven named male comparators (Appendix 2) and are therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with sections 2 and 19 respectively of those Acts. It is accepted on behalf of the complainants that the comparators require specialist qualifications and /or training to perform their duties and it is not disputing same. It contends that judgement of the ECJ in Angestelltenbetriebsrat der Wiener Gebietshrankenkasse v Wiener Gebietshrankenkasse has no relevance to the instant case stating that several questions were referred to the Court and it only answered the first one and found that "same work" did not apply. The complainants' union submits therefore that the ECJ findings relates solely to the issue of "like work" and not to the defence of grounds other than gender provided in the statutes.
4.2 The union contends that the comparators perform some of the duties of the complainants and receive a higher rate of remuneration. It rejects the respondent's argument that Handels -og Kontorfunktionaeretnes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss is relevant to this case arguing that the respondent can only rely on training to justify a difference in remuneration if the training is of importance to the performance of the functions attached to the post. In the instant case the training was not important because the tasks performed by the comparators were administrative/clerical in nature. The union submits it is trite law that "it is the actual duties performed which are relevant to and not the qualifications held by the respective parties" and refers to a number of authorities in support of this . In conclusion the complainants' union contends that the respondent has failed to demonstrate that the differences in the rates of remuneration paid to the complainants and comparators are based on grounds other than gender and therefore lawful under the Acts.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the rates of remuneration paid to the complainant and comparators are lawful by virtue of section 2(3) of the Anti-Discrimination (Pay), 1974 and section 19(5) of the Employment Equality Acts, 1998. As these provisions present the respondent with an absolute defence to this complaint it is a matter for it to discharge that burden of proof and satisfy me that there are genuine reasons unconnected with the gender of the parties involved which explain the differences in the rates of remuneration paid to them. In reaching my decision on these matter I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 Before dealing with the matter at issue in this Decision, I believe it would be useful to set out the reasons for the approach I adopted on the complaint. From the papers on file it was clear that the period covered by the complaints both pre-dated and post-dated the coming into force of the Employment Equality Act, 1998 (18 October, 1999). As that Act repealed the Anti-Discrimination (Pay) Act, 1974 it was necessary to provide for complaints which related to alleged conduct prior to 18 October, 1999. This was done by the insertion of section 106 of the Employment Equality Act, 1998 (as inserted by section 47 of the Equal Status Act, 2000). Section 106(3)-(5) of the Employment Equality Acts, 1998-2007 provided the legal basis for me to proceed to investigate the entirety of these complaints in accordance with section 77(3) of those Acts and I set this out to the parties in the course of the Preliminary Hearing on 11 December, 2007.
5.3 The core of the respondent's argument is that in order for the comparators to perform the tasks associated with their respective posts they are required to have (in the case of Technical Officer and Radio Officer) a relevant third level qualification for appointment to the positions. Whilst a third level qualification is not a pre-requisite for appointment to the post of Air Traffic Control Officer, a significant amount of post appointment training and on-going training/development specific to the post are required. This is also a feature of the two other comparator groups. The respondent contends that these factors enable it to rely on the defences available at section 2(3) of the Anti-Discrimination (Pay) Act, 1974 and section 19(5) of the Employment Equality Act, 1998. Having carefully examined the evidence submitted by the respondent on this point I am satisfied that whilst the process covering the extent and nature of these requirements may have changed somewhat in the mid-1990's, the applicants for these posts were always required to demonstrate that they possessed the qualifications etc. necessary to discharge the functions associated with the posts. At all times relevant to these complaints those requirements were premised on standards set on a global basis by the International Civil Aviation Organisation and the respondent was obliged to operate on foot of those standards. In more recent times these requirements are regulated at European level by a series of Regulations and Directives and Ireland, as a member of the European Union (and by extension the respondent), must comply with them or else its licence to provide air navigation services may be revoked. I am satisfied therefore that the comparators are required to have a significant amount of technical/professional skills and knowledge in order to perform their duties and that unless they have and maintain that knowledge/skill they run the risk of not being permitted to remain in their positions, with consequential difficulties for the respondent.
5.4 In contrast the complainants are not required to have any such technical skills/knowledge to perform their roles. I note the complainants' trade union states that it is not disputing that the comparators require specialist qualifications and /or training to perform their duties and the level or nature of same. It states that the comparators perform the functions of the complainants on occasion and it is therefore discriminatory that they are paid a higher rate of remuneration to the complainants. However the fact remains that the comparators perform a wide range of additional tasks of a technical nature which the complainants never perform. The nature of these tasks are such that the comparators must possess specific technical skills/knowledge coupled with the relevant third level qualifications (in the case of two of the comparator groups) and continuous training. The respondent submits that these requirements constitute grounds other than gender for the differences in the rates of remuneration paid to the parties and seeks to rely on a number of ECJ judgments in support of these arguments. The first of these judgements is Angestelltenbetriebsrat der Wiener Gebietshrankenkasse v Wiener Gebietshrankenkasse . The complainants' representative argues that the ECJ dealt primarily with the issue of "same work" in this judgement and it is correct in that assertion. However, it is clear from the judgement that the ECJ, whilst accepting that professional training "is one of the possible criteria for determining whether or not same work is being performed" also accepted that it "may be an objective justification for giving different pay for doing the same work". Consequently, the interpretation placed on it by the respondent is an equally valid one.
5.5 The respondent also makes reference to the ECJ judgement in Handels -og Kontorfunktionaeretnes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss and in particular paragraph 25(ii) thereof - " the employer may also justify recourse to the criterion of training by showing that such training is of importance for the performance of the specific tasks which are entrusted to the employee.". The complainant's representative contends that the aforementioned judgement is not relevant to the instant case because the tasks at issue and performed by the comparators were administrative/clerical in nature and no training was required. The union is however incorrect in its interpretation of the judgement in this regard. What the ECJ is saying is that the training provided to the comparators can contribute to the justification of different rates of remuneration where the employer can show the training concerned is of importance to the performance of the tasks entrusted to the comparators. It is clear from the evidence adduced by the respondent that the training provided to the comparators is absolutely critical to enabling them perform the technical duties attached to their posts and the respondent is therefore entitled to rely on this fact in seeking to avail of sections 2(3) and 19(5) of the Acts.
5.6 In the interests of completeness I will deal with the argument advanced by the complainants' trade union that it is trite law that "it is the actual duties performed which are relevant to and not the qualifications held by the respective parties" and it refers to a number of authorities in support of this . I have examined the authorities advanced by the complainants' representative on this point and whilst the comment is correctly stated it is not cited in context. In two of these authorities "like work" was in dispute. In the other "like work" was conceded and the Equality Officer was not satisfied that the respondent could rely on "grounds other than gender" in the particular circumstances of the case - both the complainant and comparator held equivalent qualifications. In the instant case "like work" is not being addressed at present and the second scenario is not similar in nature. Consequently, the authorities are of no assistance to the matter at hand.
5.7 Finally, the respondent refers to the Determination of the Labour Court in Department of Justice Equality and Law Reform v CPSU and submits that Court accepted that the practice of deploying Gardaí in clerical posts (which ultimately resulted in a pay differential) corresponded to a real operational need of the force and requiring those posts to be filled by serving police officers who had specialist training and/or knowledge was justified in terms of section 19(5) of the Acts. It further submits that such a requirement exists in the instant case. I cannot accept that proposition. In that case serving members of the Garda Síochána were deployed on a full-time basis to a certain number of clerical posts because those posts required that level of specialist knowledge and the Court was satisfied that such a practice corresponded to a real operational need of the Garda Síochána. In light of my comments in this and the preceding paragraphs I find that the respondent has discharged the burden required of it and has shown to my satisfaction that there are genuine reasons unconnected with the gender of the parties involved which explain the differences in the rates of remuneration paid to them.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of these claims and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that the difference in the rates of remuneration paid to the complainants and comparators are lawful in terms of section 2(3) of the Anti-Discrimination (Pay) Act 1974 and section 19(5) of the Employment Equality Acts, 1998-2007 and the complainants' claims therefore fail.
6 October, 2009
List of Complainants covered by this complaint
Ms. Collette Agar Aviation Officer III
Ms. Noeleen Cahill Aviation Officer III
Ms. Kathryn Connolly Aviation Officer III
Ms. Margaret Connolly Aviation Officer II
Ms. Lorraine Dennis Aviation Officer II
Ms. Patricia Fanning Aviation Officer II
Ms. Anne Flanagan Aviation Officer I
Ms. Dympna Fleming Aviation Officer I
Ms. Maureen Griffy Aviation Officer II
Ms. Julie Grogan Aviation Officer II
Ms. Maureen Hynes Aviation Officer II
Ms. Olive Mills Aviation Officer III
Ms. Leonara Murphy Aviation Officer III
Ms. Claire O'Donoghue Aviation Officer I
Ms. Sheila O'Halloran Aviation Officer I
Ms. Noreen O'Sullivan Aviation Officer II
Ms. Catriona Prenderville Aviation Officer I
Ms. Margaret Reddy Aviation Officer III
Ms. Jackie Roe Aviation Officer II
Ms. Kathleen Ryan Aviation Officer I
Ms. Carmel Skehan Aviation Officer I
Ms. Niamh Stanford Aviation Officer II
Ms. Ann Walsh Aviation Officer II
Ms. Veronica Walsh Aviation Officer II (Claim referred 2 February, 1999)
Ms. Catherine Ward Aviation Officer II
List of Comparators covered by this complaint
Mr. Brian Fitzsimons Radio Officer III
Mr. Vincent Lynch Radio Officer III
Mr. Kevin Marlborough Radio Officer III
Mr. Michael Murphy Radio Officer III
Mr. John Brett Technical Officer II
Mr. Tim O'Mahony Technical Officer II
Mr. Jim O'Keeffe Technical Officer II
Mr. Stephen Byrne Air Traffic Control Officer III
Mr. Ronan Cradden Air Traffic Control Officer III
Mr. Brian McLoughlin Air Traffic Control Officer III
Mr. Gerry Shanley Air Traffic Control Officer III