Nathan v Bailey Gibson Ltd

• Jurisdiction: Ireland
• Judge: Hamilton C.J.
• Judgment Date: 01 January 1998
• Neutral Citation: 1996 WJSC-SC 2004
• Court: Supreme Court
• Docket Number: [S.C. No. 375 of 1992]
• Date: 01 January 1998

NATHAN v. BAILEY GIBSON LTD

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT, 1977 SECTION 21(4)

BETWEEN:

BREDA NATHAN

Applicant/Appellant

and

BAILEY GIBSON LTD., THE IRISH PRINT UNION AND THE MINISTER FOR LABOUR

Respondents

1996 WJSC-SC 2004

HAMILTON C.J.

BLAYNEY J.

BARRINGTON J.

375/92

THE SUPREME COURT

Synopsis:

EMPLOYMENT

Discrimination

Promotion - Women - Equality - Entitlement - Woman's complaint of unlawful discrimination on ground of sex - Employer's vacancy for machinist - Employer's requirement that post be offered initially to members of male-dominated trade union - Requirement imposed on employer by trade union - Male dominance of printers trade union resulted from historical patterns of employment and not from current policies - Plaintiff woman was a member of a women's trade union - Plaintiff applied for vacant post - No obstacle to plaintiff being appointed to post provided vacancy first offered to unemployed members of printers union - Such unemployed member accepted employer's offer of post - Whether employer effected unlawful indirect discrimination against plaintiff employee on ground of sex or otherwise - Employment Equality Act, 1977 (No.16), ss. 2, 3 - Council Directive 76/207/EEC, arts. 2, 3, 5, 6 - (375/92 - Supreme Court - 29/2/96)- [1998] 2 IR 162

|Nathan v. Bailey Gibson Ltd.|

STATUTORY INTERPRETATION

Enactment

Purpose - Council - Directive - Conformity - Requirement - Act passed to implement terms of Council Directive - Interpretation in the light of the wording and purpose of the Directive -(375/92 - Supreme Court - 29/2/96)- [1998] 2 IR 162

|Nathan v. Bailey Gibson Ltd.|

WORDS AND PHRASES

"Discrimination"

Definition - Statute - Interpretation - Employee - Female - Failure to obtain promotion - Employer's wishes frustrated by terms of agreement with trade union - Whether chance of promotion denied because of employee's sex or marital status - (375/92 - Supreme Court - 29/2/96)- [1998] 2 IR 162

|Nathan v. Bailey Gibson Ltd.|

Citations:

EMPLOYMENT EQUALITY ACT 1977 S19

EMPLOYMENT EQUALITY ACT 1977 S2(a)

EMPLOYMENT EQUALITY ACT 1977 S3

NORTH WESTERN HEALTH BOARD V MARTYN 1987 IR 578

REVENUE COMMISSIONERS V KELLY EE 9/1987

EEC DIR 76/207

TREATY OF ROME 1957 ART 189(3)

EMPLOYMENT EQUALITY ACT 1977 S5

EMPLOYMENT EQUALITY ACT 1977 S3(1)

EMPLOYMENT EQUALITY ACT 1977 S3(2)

MEAGHER V MIN FOR AGRICULTURE 1994 ILRM 1

VON COLSON & KAMANN V LAND NORDRHEIN WESTFALEN 1984 ECR 1891

MARLEASING V LA COMMERCIAL INTERNACIONAL DE ALIMENTACION 1990 1 ECR 4135

TREATY OF ROME 1957 ART 189

EMPLOYMENT EQUALITY ACT 1977 S2(c)

EMPLOYMENT EQUALITY ACT 1977 S2

EEC DIR 76/207 ART 2.1

EEC DIR 76/207 ART 3.1

EEC DIR 76/207 ART 5

EEC DIR 76/207 ART 6

TREATY OF ROME ART 5

1 Judgment delivered on the 29th day of February 1996 by Hamilton C.J. [NEM DISS]

2 This is an appeal brought by the above named Breda Nathan, (hereinafter referred to as the appellant) against the judgment of Mr. Justice Murphy delivered on the 8th day of October, 1992 and the order made in pursuance thereof on the 15th day of October 1992.

3 The matter came before the High Court by way of appeal by the appellant on a point of law arising from a determination by the Labour Court made on the 8th day of April 1991 in a dispute which had been referred to it by the appellant in accordance with the provisions of Section 19 of the Employment Equality Act, 1977.

4 The facts relevant to the determination of the issues before the Court are not disputed and are contained in the affidavit of the appellant, the report of the Equality Officer, the determination of the Labour Court and are summarised in the judgment of the learned trial judge as follows:-

"The business of the Employer includes, among other things, the manufacture of cartons. One of the machines used by the Employer for that purpose is described as "the carton folder/gluer machine". That machine was operated by a man who was a member of the I.P.U. for many years up to his retirement from his employment with the Employer in January 1988. For ten years prior to his retirement the operative had been assisted in his work on the machine by the plaintiff. When the post became vacant the plaintiff applied for it.

It appears that the printing industry generally and the Employer's business in particular, is fully unionized. The craft workers are organised into specific unions, including the IPU, while non-craft employees were in general organised on a gender basis with male non-craft employees organised by the ITGWU and female non-craft employees organised by the Irish Womens Workers Branch of the FWUI. The IPU is not and was not based on gender discrimination. The objective of the union is to keep its existing membership in employment be they male or female.

The Employer entered into a "closed shop" agreement with the IPU the result of which was that vacancies as machine operators of the category in question must be offered first, to suitable candidates holding IPU membership cards, secondly to unemployed members of the IPU subject to certain training requirements and then, but only then, to non-union members. If and when a non-union member selected in accordance with that procedure is employed, the union grant membership to him or her without any distinction whatsoever on the basis of sex.

The Employer was most anxious that the plaintiff should be appointed to the available post and made strenuous representations to the IPU to that end. The union were unwilling to waive the terms of the closed shop agreement or to sacrifice the rights of their existing membership. In the circumstances the Employer interviewed certain qualified members of the union none of whom was willing to accept the post. Subsequently, the Employer interviewed certain unemployed members of the union, one of whom was selected for training and subsequently appointed to the vacant post on the 1st September 1988.

In those circumstances, the plaintiff contacted the Employment Equality Agency who, on the 28th of February, 1989 referred a complaint of discrimination in regard to the recruitment process to the Labour Court. In turn the Labour Court referred the case to the Equality Officer for investigation and recommendation."

As appears from paragraph 58 of the Equality Officers conclusions and recommendations dated 6th day of February 1990, the Equality Officer had held that

(1) Bailey Gibson Ltd. the first named respondent herein, did not discriminate directly against the appellant in terms of Section 2(a) of the Act and in contravention of Section 3 of the Act in appointing a male to the position of carton folders/gluer operator on the 1st September 1988.

(2) The Irish Print Union, the second named respondent herein, did not directly discriminate against the appellant in terms of Section 2(a) of the Act and in contravention of Section 5 of the Act in not granting her membership.

(3) Bailey Gibson Ltd., the first named respondent herein, indirectly discriminated against the appellant in terms of Section 2(c) of the Act and in contravention of Section 3 of the Act by making it a requirement that access to the vacant position of carton folder/gluer operator in 1988 be confined to persons who held membership of the Irish Print Union.

5 The first named respondent (hereinafter referred to as the Company) appealed to the Labour Court against the equality officer's findings and recommendation and the appellant also appealed against the recommendation but the Court is not concerned with the adequacy or otherwise of the equality officer's recommendations in these proceedings with regard to remedy.

6 As appears from the determination by the Labour Court, the Labour Court found that there was not direct discrimination against the worker in the terms of Section 2(c) or in contravention of Section 3 of the Act.

7 The Labour Court based its determination on the following grounds:-

8 1. In the Irish Printing Industry, craft workers were organised in specific unions, including the Irish Print Union, while non-craft employees were in general organised on a gender basis — with male non-craft employees organised by the ITGWU, and female non-craft employees organised by the Irish Women Workers Branch of the FWUL. Membership of the IPU was not based on gender. The IPU grants membership to non-craft workers in particular circumstances, and when it does so, membership is granted irrespective of the sex of the employee. However, its first objective is to keep its existing members in employment, be they male or female.

9 2. In pursuance of that objective, the IPU had an agreement with the company that certain procedures be observed in relation to recruitment. The Equality Officer was satisfied that the policy of recruitment resulted in the same difficulties for applicants, whether the candidate for employment was male or female — the Company could only recruit independently with a guarantee of a membership card for the proposed employee if the agreed procedures had first been implemented to the satisfaction of the IPU.

10 3. The fact of the matter is that there are many more male members of the IPU than there are female members. This is because, historically, the craft area of the printing industry attracted more men, and it is only in recent years that women have entered this employment area. Therefore, if the company could only recruit someone with a Union card, inevitably the pool of people who could comply with the requirement to have a Union card was going to contain more men than women.

11 4. The Equality Officer has pointed out in her recommendation that currently in excess of 80% of IPU membership is male. (In this context the Court notes the IPU at the hearing of the appeal indicated that 82% of its membership is male and 18% is female). The Equality Officer was satisfied that it was...