The Gazette 1987

GAZETTE

JULY/AUGUST 1987

Stores (Navan) Limited, 33 the part- time female sales assistants were considered to be doing work of equal value (like work) with the full- time male porters. It was recom- mended the females be paid the same hourly rate and be assimilated on to the full-time salary scale on the basis of cumulative hours worked — (ob- viously taking them longer to reach various service points on the scale). In 19 Female Employees-v- St. Patrick's College, 2 * part-time female cleaners sought an equal rate of pay with the full-time male operatives. It was recommended that the same hourly rate be paid to the cleaners. More recently, there was a judg- ment from the European Court of Justice which considered rights to pensions for part-time employees - Bilka-Kaufhaus GmbH -v- Weber von Hartz . 35 It was held that the exclusion of part-time employees f r om occupa t i onal pension schemes contravenes Article 119 of the Treaty of Rome, if this exclusion affects significantly more women than men, unless the employer can show that the exclu- sion is based on objectively justified f ac t ors unrelated to any discrimination on grounds of sex. It might be noted that pension schemes are considered to fall within the definition of 'remun- e r a t i on' in the Irish An t i- Discrimination (Pay) Act. Accor- d i ng l y, pa r t - t ime emp l oyees could well found such a claim in this country assuming such al- leged discrimination is on the grounds of sex and the employer cannot show that the alleged discrimination is on grounds other than sex. In Employment Equality Agency -v- Packard Electric Ireland Limited, /T&GWU and A T&GWY, 26 a clause in a collective agreement between the company and the unions was considered under the 1977 Ac t. The clause barred twilight shift staff (part-time) who had been laid-off or made redun- dant from that shift from apply- ing for full-time work until 26 weeks had elapsed from date of redundancy (and in practice the lay-off). This practice was con- sidered to be indirect discrimination towards twilight shift workers which mainly comprised married women.

Job Sharing Job sharing as a form of work ar- rangement has been receiving con- siderable attention in recent years. It may be defined as one full-time permanent post and its benefits be- ing shared by, more usually, t wo employees. There are many per- mutations and combinations of job sharing. It provides for certain flex- ibility in work arrangements for employees who wish to work only pa r t - t ime but the d i f f e r ence being that they are wo r k i ng within the confines of a full-time post. Such arrangement is more usual- ly taken up by female employees who may wish to devote more time to family responsibilities. From the legal viewpoint, the law as describ- ed above would apply. Employee Participation The Worker Participation (State Enterprise) Act, 1977 (as amend- ed) provides for the election of employees of designated state enterprises to the Board of Direc- tors. In order to vote in such elec- tions an employee must be over 18 years and have one years service, and in order to stand for such elec- tion the employee must have three years service, such employees be- ing f u l l - t ime. Recently the Employee Participation (State Enterprises) Bill, 1986 was publish- ed — the definition of employee has been widened to include part- time staff working a minimum of 18 hours per week. Conclusions The application of the law and pro- tective legislation is complicated and further, arguably restrictive for both employer and employee. Such restrictions are immediately ap- parent in relation to fixed term con- tracts. Statistically, there is an increase in the number of employees doing part-time work. However, the legal constraints do not seem to be keeping abreast with the requirements for flexibility by both employer and employee.

3.

Handy, Charles, — 'The Future of Work' - Basil Blackwell Ltd., London, 1985. Hepple, Bob, — Restructuring Employment Rights, ILJ, Volume 1 5, No. 2, pp. 69-83. Internationl Labour Conference, 'The Changing World of Work — Majoi Issues Ahead' — Report of Directoi General (Part I) 72nd Session, 1986, ILO, Geneva. EAT, 17th April, 1985 (unreported) Employment Law Cases, Volume 1, IDS, London. 1048/1983 - redundancy claim. 14, M50 and UD 23/1985 - Carroll, J. unreported High Court, 1st October, 1984. Clarke, J. unreported Circuit Court, 19th November 1985. Minimum Notice and Terms of Employment Acts, 1973 and 1984. redundancy claim dismissed. 11978) ICR 1210. [19831 IRLR 369.

4.

5.

6. 7. 8.

9.

10.

11.

12.

13.

14. 15.

119701 3 All ER 220.

Barron, J. unreported High Court, 16th April, 1986.

16.

392/3,

M

820/1

and

UD

326/7/1984.

17. 18.

UD 1183/1983.

See McFadden - v- Ryan t/a Zodiac Apparel M 294/1981.

19. 20. 21. 22. 23. 24. 25.

UD 1213/1983. UD 302/1985. UD 178/1978.

M 1883 UD 1117/1982. M 2683 and UD 960/1984.

UD 347/1983.

Application of paragraphs 5 and 8 and see section 8 1967 Act. Section 8 in summary provides that if an employee has been made redundant or laid-off for an average annual period of more than 12 weeks in a four year period, there will not be an entitlement to redundancy payment: until the average annual period has elapsed — if he resumes work before the period has elapsed - i f before the period elapses there is an offer of re-employment which the employee unreasonably refuses. 1054, M 2749 and UD 1068/1983.

26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36.

M 542 and UD 244/1978.

[19821 ILRM 390.

Gleeson, J. Circuit Court, 26th March, 1980.

123 and UD 131/1979.

UD 864/1984. UD 808/1984. EP 15/1982.

EP 4/1984.

[1986] IRLR 317.

EE 14/1985

GENERAL REFERENCES 1.

Hepple and O'Higgins, B. Hepple Employment Law, 4th Edition 1981, Sweet and Maxwell, London. Leighton, Patricia, Job Sharing, ILJ Volume 15, No. 3, 1986, p. 173. Redmond, Mary, Beyond the Net — Protecting the Individual Worker 1983 2 JISLL p. 1. •

REFERENCES 1.

OECD, Employment

Outlook,

2.

September 1985, pp. 26-27. CSO, Labour Force Sample Survey — April, 1985 — (latest figure available) (percentage of full-time workers not available).

2.

3.

196