Brides v Minister for Agriculture

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 128
• Court: High Court
• Docket Number: No. 318 SP/1996,[1996 No. 318 Sp]
• Date: 01 January 1998

BRIDES v. MIN AGRICULTURE

IN THE MATTER OF THE ANTI-DISCRIMINATION (PAY) ACT, 1974

BETWEEN

CATHERINE BRIDES, CATHERINE COLLINS, MARY DOHERTY, MURIEL KIRK, SHEILA McGINN, BRIGID McGOWAN, ANN MULLANE, BRIDIE MURPHY, NELLIE RYAN, MONICA SOROHAN AND THE IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION

APPLICANTS

AND

THE MINISTER FOR AGRICULTURE, FOOD AND FORESTRY

RESPONDENT

AND

THE MINISTER FOR EQUALITY AND LAW REFORM

NOTICE PARTY

[1997] IEHC 128

No. 318 SP/1996

THE HIGH COURT

Synopsis:

Employment

Equality; equal pay; comparator; female applicants employed by respondents paid less than males engaged in like work by statutory body; whether applicants and comparators employed by same employer; whether employed by associated employer under same terms and conditions; s.2, Anti-Discrimination (Pay) Act, 1974; whether reference under Art. 177, Treaty of Rome appropriate Held: Applicants not employed by same or associated employer as comparators; Art. 177 reference not necessary High Court: Budd J. 21/07/1997 - [1998] 4 IR 250

Brides v. Minister for Agriculture, Food and Forestry

Citations:

ANTI-DISCRIMINATION (PAY) ACT 1974 S3(c)

ANTI-DISCRIMINATION (PAY) ACT 1974 S2(1)

ANTI-DISCRIMINATION (PAY) ACT 1974 S8

ANTI-DISCRIMINATION (PAY) ACT 1974 S2

ANTI-DISCRIMINATION (PAY) ACT 1974 S2(2)

TREATY OF ROME ART 119

EEC DIR 75/117 ART 1

EMPLOYMENT EQUALITY ACT 1977 S56(2)

TREATY OF ROME ART 177

ANTI-DISCRIMINATION (PAY) ACT 1974 S8(3)

CILFIT V MIN FOR HEALTH 1982 ECR 3415

EEC DIR 75/117 ART 8

CURTIN IRISH EMPLOYMENT EQUALITY LAW 44 (1989)

DEFRENNE V SABANA (NO 2) 1976 ECR 455

COMMISSION V DENMARK 1985 ECR 427

SCULLARD V KNOWLES & SOUTHERN REGIONAL COUNCIL FOR EDUCATION & TRAINING 1996 IRLR 344

EQUAL PAY ACT 1970 S1(6)(c)

MACARTHYS LTD V SMITH 1980 ECR 1275

JENKINS V KINGSGATE (CLOTHING PRODUCTIONS) LTD 1981 ECR 911

HASLEY V FAIR EMPLOYMENT AGENCY 1989 IRLR 106

EQUAL PAY ACT 1970 (NI)

EQUAL PAY ACT 1970 S1(2)

EQUAL PAY ACT 1970 S1(7)(c)

EEC DIR 75/117 ART 2

EEC DIR 75/117 ART 6

VON COLSON V LAND NORDRHEIN-WESTFALEN 1984 ECR 1891

TREATY OF ROME ART 5

HANDELS-OG KONTORFUNKTIONAERNES FORBUND I DANMARK V DANSK ARBEJDSGIVERFORENING 1989 ECR 3199

BANK OF IRELAND V KAVANAGH UNREP COSTELLO 19.6.87 1987/5/1266

ANTI-DISCRIMINATION (PAY) ACT 1974 S8(1)

MARA (INSPECTOR OF TAXES) V HUMMINGBIRD LTD 1982 ILRM 421

BYRNE V IRELAND 1972 IR 241

CENTRAL BANK OF IRELAND V GILDEA UNREP SUPREME 14.3.97

AGRICULTURE (RESEARCH TRAINING & ADVICE) ACT 1988 S3

MARSHALL V SOUTHAMPTON & SOUTH WEST HAMPSHIRE AREA HEALTH AUTHORITY 1986 ECR 723

FOSTER V BRITISH GAS PLC 1990 1 ECR 3313

O CEARBHAILL V BORD TELECOM EIREANN 1994 ELR 54

CLONSKEAGH HOSPITAL V TWO TELEPHONISTS EP 40/1979

1 Judgment of Mr. Justice Declan Budd delivered on the 21st day of July 1997

1. BACKGROUND

2 The first to tenth named Applicants are employed in the Department of Agriculture, Food and Forestry and are referred to ??? eleventh named Applicant is the Claimants" trade union and re??? an Equality Officer and the Labour Court in respect of the ???atter of these proceedings. The Respondent and the Notice Pa??? Government.

3 The Claimants are all employed in the Department of Agriculture, Food and Forestry ("the Department") as Poultry Officers. The Union made an application to an Equality Officer on their behalf pursuant to the provisions of the Anti-Discrimination (Pay) Act, 1974("the 1974 Act"). On 31st May, 1995, the Equality Officer issued a recommendation bearing record number EP03/1995 which found that the Claimants were employed on "like work" with that performed by their male comparator in terms of section 3(c) of the 1974 Act. The comparator was employed by Teagasc as an Agricultural Development Officer but the Equality Officer further found that the Claimants and the comparator did not have the same terms and conditions of employment for the purposes of section 2(1) and therefore he was unable to find that they were employed by "associated employers". Consequentially, the Equality Officer recommended that the Claimants were not entitled to equal pay with the comparator.

4 The Union, on behalf of the Claimants, appealed the recommendation to the Labour Court, pursuant to section 8 of the 1974 Act, on the following grounds:-

5 i "(i) The Equality Officer erred in law and in fact in finding that the Respondent had not contravened the 1974Anti-Discrimination (Pay) Act with regard to the pay of the Claimants.

6 (ii) If the Equality Officer found that the Department of Agriculture, Food and Forestry and Teagasc are not associated employers for the purpose of section 2 of the 1974 Act, which is denied, he erred in law and in fact in so finding.

7 (iii) The Equality Officer erred in law and in fact in finding that the Claimants and the comparator did not have the same terms and conditions of employment for the purposes of section 2 of the 1974 Act.

8 (iv) The Equality Officer erred in law and in fact in not awarding equal pay and arrears of equal pay to the Claimants.

9 (v) On all grounds that have been submitted during the Equality Officer's investigation and such other grounds as may arise during the course of the appeal."

10 On 7th May, 1996, the Labour Court issued its determination, DEP296, which dismissed the appeal, after considering all the submissions and held as follows:-

11 a "(a) The Department of Agriculture, Food and Forestry is not the same employer as Teagasc;

12 (b) The Claimants and the comparator do not have the same terms and conditions of employment;

13 (c) The Department of Agriculture, Food and Forestry is not an associated employer with Teagasc within the meaning of section 2( 1) or 2(2) of the Act."

14 The Applicants claim that, in reaching its determination, the Labour Court erred in law:-

15 1. In holding that the Department and Teagasc were not "associated employers" within the meaning of section 2 of the 1974 Act;

16 2. In holding that the Claimants and the comparator did not have the same terms and conditions of employment for the purposes of section 2(1) of the 1974 Act;

17 3. In misinterpreting section 2 of the 1974 Act;

18 4. In the alternative, in failing to hold that the State was the employer of both the Claimants and the comparator pursuant to Article 119 of the Treaty of Rome and Council Directive 75/117/EEC;

19 5. In disregarding the submissions made on behalf of the Claimants concerning the jurisprudence of the Court of Justice of the European Communities;

20 6. In failing to hold that the Claimants were entitled to the same rate of remuneration as the comparator pursuant to Article 119 of the Treaty of Rome and Council Directive 75/117/EEC;

21 7. In dismissing the Claimants" appeal against the recommendation of the Equality Officer.

22 The Applicants" claim is for a declaration that they are entitled to the same rate of remuneration as the comparator with whom the Claimants have been found to perform "like work" and, in the alternative, an Order setting aside the determination of the Labour Court in so far as the determination found that the Claimants were not entitled to the same rate of remuneration as the comparator and remitting the matter to the Labour Court to be determined in accordance with the findings of law made by this Court.

23 The matter is brought before this Court on foot of the grounding Affidavit of Kevin Callinan sworn on 27th May, 1996 and filed on 28th May, 1996 and the exhibits therein, namely the recommendation dated 31st May, 1995 of the Equality Officer bearing record number EP03/1995 which found that, although the Claimants were all employed on "like work" with the named comparator, they were not entitled to the same rate of remuneration, and the determination, DEP296, of the Labour Court on the appeal which upheld the Equality Officer's recommendation and dismissed the appeal. The replying Affidavit of the 15th November, 1996 on behalf of the Respondent was sworn by James Caddle, Assistant Principal Officer formerly of the Department, who was responsible for representing the Department before both the Equality Officer and the Labour Court.

24 It is common case that in respect of adjudicating on the issues before this Court the comparator and the Claimants should be regarded as performing "like work". Some of the issues are overlapping and intertwined. I propose to set out Article 119 of the Treaty of Romeand the most relevant provisions of Council Directive 75/117/EEC (the " Equal Pay Directive") and also the material sections of the Anti-Discrimination (Pay) Act, 1974("the 1974 Act") and relevant provisions of the Employment Equality Act, 1977("the 1977 Act"). I consider the issues under the headings:-

25 1. Background.

26 2. Relevant Legislation.

27 3. Community Law: Article 119 and the Equal Pay Directive.

28 4. The Jurisdiction of this Court as an Appellate Court.

29 5. Irish Law: The Anti-Discrimination (Pay) Act, 1974:

30 (a) "Same Employer".

31 (b) "Terms and Conditions".

32 (c) "Associated Employer" and "Control".

33 6. Application for a Reference under Article 177.

2. RELEVANT LEGISLATION

34 Article 119 of the Treaty of Rome reads as follows:-

"Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work."

35 For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.

36 Equal pay without discrimination based on sex means:

37 (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

38 (b) that pay for work at time rates shall be the same for...