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Cite as: [2013] IEHC 607
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Judgment Title: Blackrock College -v- Browne Neutral Citation: [2013] IEHC 607 High Court Record Number: 2012 286 MCA Date of Delivery: 20/12/2013 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 607 THE HIGH COURT [2012 No. 286 MCA] BETWEEN BLACKROCK COLLEGE APPELLANT AND
MARY BROWNE RESPONDENT JUDGMENT of Mr. Justice Hedigan delivered on the 20th day of December 2013 Application Parties Background 3.2 In accordance with circular 25/2011 published by the Department on the 8th April, 2011, the respondent is required to work up to an additional 33 hours each year. These additional hours are not pro-rata by reference to the respondent’s part-time hours/salary. Her proportionate additional hours are therefore in fact greater than those of fulltime teachers in the school. 3.3 On 12th July, 2006, the respondent brought a complaint before the Rights Commissioner pursuant to s. 16 of the Protection of Employees (Part-Time Work) Act 2001, claiming that she had been treated less favourably in respect of her pay, pension and other conditions of employment than another teacher (the comparator teacher) paid by the Department and who is employed in a fulltime capacity. The Rights Commissioner on 30th September, 2008, decided that the respondent’s complaint was well founded and directed that she be awarded a contract of indefinite duration comparable to her colleagues on the full time staff. 3.4 On 31st October, 2008, the appellant appealed this decision pursuant to s. 17 of the 2001 Act, to the Labour Court contending that the respondent should not be entitled to use as a comparator a fulltime Department-funded teacher. The Labour Court, with the agreement of the parties and with a view to saving costs, determined by way of preliminary hearing the question of whether the comparator nominated by the respondent was an appropriate comparator for the purposes of s. 7 of the 2001 Act. In its determination of the preliminary issue of 2nd February, 2009, the Labour Court declined to uphold the school’s case on the appropriateness of the respondent’s chosen comparator finding that:-
2. The respondent and the comparator were engaged in like work for the purposes of the act; 3. The respondent was entitled to succeed in her claim unless the impugned differences were justified on objective grounds. 3.6 The Labour Court ruled on 13th February, 2012, that it had no jurisdiction to vacate its preliminary determination and proceeded on the basis that there were two outstanding issues, namely whether there were objective grounds justifying the less favourable treatment and if there was no objective justification the redress to which the respondent was entitled. 3.7 On 18th July, 2012, the Labour Court determined that there were no objective grounds justifying the less favourable treatment and therefore found that the respondent’s claim was well founded. It determined that the respondent was entitled to the same terms and conditions of employment as those afforded to her nominated comparator with effect from a date 6 months prior to the date on which her claim was initiated before the Rights Commissioner i.e. on 12th January, 2006. The appellant has now appealed this ruling of the Labour Court to this Court. Appellant’s Submissions
4.2. There should be no referral to the Court of Justice of the European Union The appellant does not agree with the respondent’s submission that this Court should make a preliminary reference to the CJEU. Article 267 of the Treaty on the Functioning of the European Union is designed to be used only if there is a question to be answered which falls into one of the categories mentioned in the first part of that Article. Thus, the decision to make a preliminary reference is discretionary and that discretion is not absolute. Article 267 states:-
(a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon…” In CILFIT Srl and Lanificio di Gavardo SpA v. Ministry of Health (Case C- 283/81) the CJEU at para. 11 of its judgment made it clear that a reference need only be made when the national court:-
4. 3. The respondent chose the wrong comparator The central issue in this case is whether the respondent is entitled to choose a department paid full time teacher as her comparator. Section 7(2) of the 2001 Act defines who can be a comparator for the purposes of a claim by a part-time employee to equal treatment with a fulltime employee. The appellant contends that the comparator chosen by the respondent is not an appropriate comparator and that the appropriate comparator is a privately paid full time teacher employed by the appellant. It asserts that its view is supported by the wording of Directive 97/81/EC which the 2001 Act was intended to implement. Clause 3(2) of that Directive defines a full-time worker:-
4.4 The respondent and comparator have different employers. Department paid teachers are employed within a tripartite contractual arrangement in which the appellant is one of the parties, the Department and the teacher being the other two parties. The bipartite contract which exists between the private teacher and the appellant is not the same type of employment contract or relationship which Department paid teachers have and it is submitted by the appellant that the respondent at no time has had any contractual relationship with the Department. For Department paid teachers, the Department is their paymaster and is the sole determiner of their financial terms and conditions of employment including rates of pay, pension arrangements, sick pay and maternity leave. They are also registered with the Teaching Council and have access to the Teachers Conciliation Council (hereinafter “TCC”) within a framework to which the appellant is not a party. Privately paid teachers are employed directly by the school, have no relationship whatsoever with the department and are not regulated by it. They do not enjoy the benefits enjoyed by the department funded teachers such as pension scheme, extensive sick pay and maternity pay entitlements, access to a re-deployment panel, access to career breaks and various other financial benefits which have been negotiated directly with the Department. The respondent belatedly points out that the Joint Management Board (of which the school is a member) sits at the TCC and suggests that Dunne J. in CUS was not aware of this. The Labour Court in this case was never provided with any evidence or submissions to suggest that the Joint Management Board had any influence in any discussions which took place at the TCC between the teachers’ unions and the Department in determining the terms and conditions of Department paid teachers that are regulated by the Department. The appellant refutes any suggestion that the terms and conditions of Department teachers are set by the teaching Council and asserts that they are merely negotiated by them which is different. The Joint Management Board’s role is observatory not active and there is no evidence that those negotiations influence the Minister for Education in setting the terms and conditions of teachers. Moreover, s. 24(3) of the Education Act 1998 (as amended) confirms that terms and conditions of Department paid teachers appointed by the Board of Management “shall be determined from time to time by the Minister”. Therefore as a matter of law, the TCC cannot determine terms and conditions, including pay, for department paid teachers and cannot override clear legislative provisions. The ratio of Dunne J. in CUS was not based on a finding that the Department has no input into the terms and conditions of privately paid teachers but rather that the school has no input into the Department paid teachers. Notwithstanding the above, it is argued that no concrete evidence was put before the Labour Court in this case that the school has such control. The respondent’s argument that the appellant retains pay cuts imposed on the respondent merely demonstrates to an even greater degree the absence of the Department’s role in relation to the terms and conditions of privately paid teachers. 4.5 Relevance of Financial Emergency Measures in the Public Interest. Many of the factual claims now sought to be made by the respondent were not put before the Labour Court prior to the making of the determination in July 2012 e.g. the argument that extensive changes were brought about by the Financial Emergency Measures in the Public Interest Legislation (hereinafter “FEMPI”) such as the imposition of 33 hours of unpaid work. This court cannot be expected or required to examine factual matters which were not before the Labour Court, whether because they were not cited to the Labour Court or whether because that particular factual scenario had not materialised at the time of the Labour Court’s determination of the issues. Even if the respondent is correct to say that there is a difference in circumstances now to what pertained when CUS was decided and if FEMPI means the department has a role in the respondent’s contract, the appellant argues that such role is no different to the role it exerted previously and could be likened to the role of the state in the solicitors’ profession. If it in any way establishes a tripartite relationship it is an entirely different one to that argued by the respondent. All FEMPI does is increase the department’s role in the respondent’s job by imposing a percentage cut on her pay. This is not the same as setting her pay and does not signify that the Department has any input into her terms and conditions. The respondent issued a fresh claim before the Rights Commissioner in December 2011 and it is submitted that that is the appropriate forum to ventilate any arguments she may have in relation to FEMPI. Such matters cannot be relevant to this Court’s determination of whether the Labour Court misdirected itself in law in the conclusions it drew of the law and/or on the facts before that legislation was introduced. 4.6. Catholic University School v Dooley & Keogh It is submitted that the decision in CUS to the effect that Department paid teachers were not suitable comparators was correct and the appellant contends that the Labour Court erred in law in failing to follow that binding judgment. Dunne J. in CUS recognised that the department had some input into how a private teacher was treated by their employer i.e. the Board of Management. She found however that the state’s ability to direct that the pay rate set by the school be subject to a percentage reduction was not sufficient to create a tripartite relationship. Likewise, it was accepted that private teachers had access to the department pension scheme, were obliged to teach the department curriculum and were subject to departmental evaluation. This notwithstanding Dunne J. found that the Department paid teachers were not the correct comparators. The appellant relies on Metock & Ors –v.- Minister for Justice Equality & Law Reform [2008] IEHC 77 where Finlay Geoghegan J. stated at para.50 in a situation where the matter at issue was already the subject of another High Court decision that:-
Respondent’s Submissions The present appeal is brought pursuant to s. 17(6) of the 2001 Act which provides for a confined jurisdiction on a point of law. The reliefs sought by the appellant concern the procedure adopted by the Labour Court and do not concern a point of law. These reliefs, the respondent argues, should therefore be sought by way of judicial review (an order of certiorari and/or mandamus) rather than appeal, and the appellant has not done this. Moreover, the respondent contends that the time to lodge any appeal of the preliminary decision of the Labour Court has expired. Likewise, she contends, time has expired to appeal the determination of the Labour Court of the 13th February, 2012, in which it ruled that it could not vacate or alter its preliminary decision. 5. 2. The limited role of the Court to change a decision. The respondent asserts that the Labour Court was fully entitled on the law and on the facts to determine that she and her nominated comparator were engaged in like work within the meaning of the 2001Act. The burden of proof in establishing an error of law is on the appellant and it is an onerous one. In Minister for Agriculture v Barry [2008] IEHC 216, at p.618, Edwards J., referring to the role of an appellate court, made reference to the judgment of Sir John Donaldson M.R. in the English case of O'Kelly v. Trusthouse Forte plc. [1983] I.C.R 728 where he stated at pp. 760 to 761:-
Council Directive 97/81/EC provides that part-time workers may not be treated in a less favourable manner than comparable fulltime workers solely because they work part-time unless different treatment is justified on objective grounds. The Protection of Employees (Part Time) Work Act 2001 was adopted to implement this Directive. In this instance it is argued that the respondent is clearly being treated less favourably than her fulltime comparator, in breach of the Directive. The respondent cannot claim parity with the Department paid teachers in respect of sick pay or indeed any pay, notwithstanding that any deductions imposed upon the Department funded teachers are automatically imposed upon the respondent. Moreover, she is obliged to attend meetings outside school hours in circumstances where she will not be paid for same while her comparator is paid. Thus the respondent is required to bear the same adverse measures as are imposed on a department funded teacher without receiving the same benefits. 5.4. The respondent is entitled to choose her comparator This Court is being asked to decide whether the Rights Commissioner and the Labour Court were correct in finding that the respondent was entitled to choose a full time department funded teacher as comparator under s.7(2)(a) of the 2001 Act. Section 7(2) of the 2001 Act provides:-
(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.” The CJEU decision in Specialarbejderorbundet i Danmark v Dansk Industri (Case C-400/93) was posed as to whether it was possible to section off a certain subset of painters and compare them with a certain subset of turners. The CJEU stated very clearly at para. 38 that such sub-division was not possible.
Therefore it is argued that the respondent was entitled to choose a department funded teacher as her comparator within the meaning of s.7 of the 2001 Act and such comparator is valid in law. 5. 5. The decision in CUS should not be followed. The appellant seeks an order compelling the Labour Court to follow the judgment of the High Court in CUS, delivered subsequent to the preliminary determination of the Labour Court in this matter on 2nd February, 2009. The respondent argues however that the judgment in CUS is not determinative of this matter and it is contrary to decided authority, namely the Supreme Court decision in O’Keeffe v Hickey [2009]2 IR 302. That case is authority for the proposition that the school is the employer of both the claimant and the comparator. At para. 206 of the judgment Fennelly J found:-
Even if it were found that the terms and conditions of the respondent and her comparator were determined by different processes this does not exclude the application of Directive as held by the Court of Justice of the European Union in Dr Pamela Enderby v Frenchay Health Authority and Secretary of State for Health (Case C- 127/92). When CUS was decided Dunne J. was unaware of the State’s power to intervene in private contracts. Subsequent to her decision, there was a significant change in the factual circumstances applicable to the employment of the respondent with the enactment of the FEMPI legislation. From the resultant changes imposed on the respondent’s salary, it is now fully clear that the Department has always been empowered to determine to a large extent the terms and conditions of both Department funded and privately paid teachers and that the school no longer exclusively determines the terms and conditions of privately paid teachers such as the respondent. The Department has imposed upon the respondent a pay cut of 5% as of 1st May, 2011, which has been implemented by the school, and which deduction is not remitted by it to the Department. While it appears from correspondence sent by the appellant to the respondent that it did not wish to reduce her pay, it felt it was statutorily bound to do so. The respondent has also suffered a pay increment freeze, a pension levy introduced for public sector workers on the 1st March, 2009, and the requirement to work 33 additional hours per year pursuant to the Croke Park Agreement. The respondent also argues that CUS should not be followed since it took the incorrect view of the definition of an employer. The appellant relies on the difference in the paymasters of the respondent and the comparator to argue that the respondent is not entitled to compare herself to a Department paid teacher and relies on the ratio decidendi of the Dunne J. that:-
5. 6. Preliminary Reference The respondent argues that the refusal of the court to refer to the CJEU in CUS arose from a procedural issue, namely that the request for a reference had not been made at the time that the matter was still pending before the court. The respondent therefore argues that if this court is now to conduct a de novo consideration of the applicability of s. 7(2) of the Act to the respondent or is inclined to remit the matter to the Labour Court or in the event that the court is inclined to decide against her on the question of whether the existence of a bipartite relationship in respect of her employment and a tripartite relationship in respect of the comparator’s employment justifies discrimination it should refer the matter to the CJEU for clarity. DECISION
6.2 The role of the court in this kind of appeal was considered by this court in An Post v. Monaghan [2013] IEHC 404, at para. 5:
6.3 It was agreed by both sides that the central question was as to whether the comparator chosen by the respondent was the correct one. Could she choose a fulltime ‘Departmental’ teacher or was she obliged to choose a fulltime ‘private’ teacher in order to find a true comparator. This question was directly addressed by Dunne J. in the CUS case (cited above). The appellant relies upon this judgment whilst the respondent argues that it was wrongly decided, primarily because the learned judge did not then know of the power of the Minister under the FEMPI legislation. In that case, the key finding is set out at p. 520 of the IEHC report as follows:
The question as to whether I should follow this judgment of a court of equal jurisdiction does not arise because I agree with Dunne J’s judgment. This finding is dispositive of the case. I do not see any necessity, therefore, for a referral to the CJEU. There will be an order setting aside the determination of 18th July 2012 of the Labour Court herein on the basis that it erred in law in finding that the respondent was entitled to choose a fulltime Departmental-funded teacher as a comparator.
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