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Collective Agreements, without more, do not justify pay disparty

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[Thanks to Daniel Tivadar of 3 Hare Court for preparing this case summary]

Can collective agreements in themselves justify prima facie indirect discrimination under the Equal Pay Directive?

No, says the CJEU in Kenny v Minister for Justice.

The appellant employees were civil servants deployed to clerical duties with the police force in Ireland. Clerical duties were also carried out by police officers for higher wages. 'Civilian' clerks were mostly female, police clerks were predominantly male. The employees brought an equal pay claim alleging indirect discrimination. The Respondent sought to justify the different treatment by arguing, amongst other things, that the number of posts reserved for police staff had been determined by a collective agreement. The national court sought assistance from the CJEU with the interpretation of the Equal Pay Directive.

The CJEU held that employees perform the 'same work' if they can be considered by the national court to be in a comparable position, considering relevant factors, such as the nature of their work, training requirements etc. The employer's objective justification has to relate to statistics of comparators illustrating the true and long-term position. The interest of good industrial relations is subject to the requirement of non-discrimination and cannot of itself constitute the only basis justifying discrimination. Nevertheless, collective bargains are a factor in determining whether differences of pay are due to objective factors unrelated to discrimination on the grounds of sex.