Judicial Review No 236/87
THE HIGH COURT
JUDICIAL REVIEW
BETWEEN
CATHERINE CADWELL
APPLICANTS
AND
THE LABOUR COURT
RESPONDENTS
 AND 
LISSADELL TOWELS LIMITED
NOTICE PARTY 

Judgment of Egan J. delivered the 18th day of May 1988

The Applicants are factory operatives, employed by the Third Party, Lissadell Towels Ltd., of Carrickmacross, Co. Monaghan, in such jobs as cutter, sewing machine operator, automatic embroidery machine operator, folder/examiner and shrink-wrapping machine operator.  By letter dated the 27th June 1985 the Applicants through their Union, The Irish Transport and General Workers Union, requested an investigation by an Equality Officer of the dispute as to whether or not the Applicants were entitled to the same weekly rate of basic pay as certain male employees of the Company and as to whether the Applicants were entitled to be paid a production bonus at the same minimum rate of performance as certain male employees.

The requested investigation took place and the Equality Officer issued a recommendation pursuant to the provisions of Sec. 7 of the Anti-Discrimination (Pay) Act 1974 as amended on the 7th day of August 1986.  The recommendation was to the effect that the Applicants were entitled to the same rate of basic pay and to be paid a bonus at the same minimum level of performance as the named male employees.

The Company appealed to the Respondent, the Labour Court, against the recommendation of the Equality Officer.  The Appeal was heard on the 19th November 1986 and there was a further hearing on the 5th May 1987.  Written submissions were
made by both parties.  The Respondent issued a determination dated the 21st May 1987 in which it allowed the appeal of the Company against the recommendation of the Equality Officer.

The reasons why the Appeal was allowed by the Respondents can be summarised as follows:-

(a)	that the Equality Officer's opinion that "equal in value" used in Sec. 3(C) of the 
1974 Act means work that warrants the same rate of remuneration was not correct.

(b)	that the Equality Officer's finding that there was no material difference between the Appellant's work and the men's work which warranted their unequal rates of basic pay and that their work, therefore, was "like work" within the meaning of Sec. 3 of the Act was an invalid conclusion.

The Respondents stated that there was not a "material difference" provision in the Act.  They found that the Equality Officer's conclusion was not based on a finding of equality in the value of the work of the Claimants and the work of any males, comparators or
otherwise.

(c)    that the recommendation of the Equality Officer was based on an incorrect interpretation of "remuneration" as used in Sec. 2(1) of the Act. The Respondents made it perfectly clear that they were not dealing in detail with the facts of the case.  The Appeal
was allowed on grounds relating to the interpretation of the Act.

The merits of the dispute were, therefore, not considered by the Respondents and it is perfectly clear, therefore, that the actual dispute itself remains unresolved. It is interesting to note from the Affidavit sworn in this matter by Muireann O'Briain, Registrar to the Labour Court, that the Respondents did, in fact, consider whether it would carry out a new investigation but decided against it.  There could hardly have been any difficulty in relation to the carrying out of a de novo investigation on the merits.  The Respondents had available to them a mass of documentation, comprehensive written submissions and ample powers to require any further evidential assistance.

Sec. 8(1)(a) of the 1974 Act provides that:

"a party to a dispute in relation to which an equal pay officer has made a recommendation may appeal to the Court against the recommendation or may appeal to the Court for a determination that the recommendation has not been implemented."

Subsection (b) provides that:

"the Court shall hear and decide any appeal under this subsection and shall convey its determination to the parties etc."

The Respondents are "the Court" referred to in the section.  Can it be said that they "decided" the appeal? In a very narrow sense it could be said that they did but, in P        my opinion, the subsection should not be narrowly interpreted. The equal pay officer made a recommendation in relation to a dispute.  The recommendation was in favour of the Applicants. The appeal of the Company was allowed on the basis that errors had been made by the equal pay officer on grounds relating to the interpretation of sections of the Act but there was no determination by the Respondents of the dispute as to whether or
not the Applicants had a valid and enforceable claim against the Company pursuant to the provisions of the 1974 Act.

I am of opinion, therefore, that it cannot be truly said that the Respondents "decided" the appeal against the recommendation of the Equal Pay Officer in relation to the dispute when they omitted to apply their minds to the question as to whether or not the Applicants had a valid complaint against the Company pursuant to the 1974 Act.

It is interesting to note certain provisions of a later Act i.e., The Employment Equality Act, 1977, which deals with other types of discrimination. Under Sec. 19(2) of this Act
"where a dispute is referred under this section to the Court, it shall endeavour to settle the dispute through an Industrial Relations Officer of the Court or refer the dispute to an
equality officer for investigation and recommendation etc." Sec. 21 permits an appeal to the Court (again the Labour Court) against a recommendation under Sec. 19 and then Sec. 22 provides inter alia that "a determination of the Court under Section 21 shall do one or more of the following:-

(a)	hold that there was or (as the case may be) was not discrimination
(b)	recommend to a person or persons concerned a specified course of action
(c)	award compensation in accordance with this Act
(d)	(not necessary to cite)

I do not say that these provisions directly affect the problem even though Sec. 56(2) of the 1977 Act provides that "The Act of 1974 and this Act shall be construed together as one Act" but it would seem that an employer's appeal in a discrimination dispute under the 1977 Act would not be allowed unless there was a determination that there was not discrimination.  Subsections (b) and (c) would not be relevant where an employer's appeal was successful.

Despite the absence of express words in the 1974 Act I hold that the Respondents should not have allowed the appeal against the favourable recommendation of the Equal Pay Officer when they made no finding to the effect that there had not been discrimination.
 
The determination of the Respondents dated the 21st May 1987 will accordingly be quashed and I direct that the matter be remitted to the Respondents with a direction that they should reconsider the matter and investigate the validity of the Applicants' dispute with the Company in relation to alleged discrimination in pay.