Insights

On 9 December 2014, the Industrial Tribunal delivered a decision where it applied the equal pay for equal work principle to 5 employees who were doing the same work as other colleagues employed in a different job category. The Industrial Tribunal also upheld that, in principle, differentiation in pay and employment conditions for employees is legitimate where an employee possesses higher qualifications.

Background

5 employees work as Plant Operators (Tank Area) in the Power Generation Unit (‘Employees’) at Enemalta Corporation (‘Employer’). The Employees filed a complaint before the Industrial Tribunal claiming discrimination on the basis that they were paid less when compared to other employees who were doing the exact same job, but were ranked as Senior Plant Operators.

The Employees sat for the required exam to be promoted to senior plant operators in March 2008. In terms of a circular distributed by the Employer that same month, the salaries of all employees who had met the exam requirements the previous year were raised. The salaries of the Employees were not raised until they were promoted to Senior Plant Operators in March 2013, and, thus were on par with their co-workers. In 2011, the wages of Senior Plant Operators in general were raised from scale 12 to scale 10. The Employees asked for the wages which they did not receive during the time they were equally qualified as their co-workers, but were still being paid less.

Decision

The Industrial Tribunal stated that although the Employees had been doing the same job as senior plant operators for a long time, it could only consider the period from March 2008 (when the Employees had passed their exam) up until March 2013 (when the Employees were finally promoted to Senior Plant Operators). The Industrial Tribunal refused to take into account the period of time pre-2008, since it was not clear, from the evidence produced, at which moment in time the Employees were effectively at par with their co-workers.

The Industrial Tribunal went on to calculate the amount due for each year which senior plant operators were paid more than plant operators and awarded the respective compensation due to each employee accordingly. The range of compensation was between €13,800 and €15,000. The Industrial Tribunal also stated that the Employees should have the same rights and work conditions as the other two senior plant operators.
It is of key note that the Employer explained that there was a never the need to create the post of Senior Plant Operator. It stated that the post was created to allocate Works Technical Officers who were more qualified than the Employees and were going to be made redundant in terms of an agreement reached with the trade union. The Industrial Tribunal did not discount this argument. It acknowledged that the distinction in pay between the two classes of employees was legitimate when it was created way back in 1995 since the Works Technical Officers were more qualified than the Plant Operators. It noted, however, that as the years passed, the Plant Operators acquired the same skills of Senior Plant Operators and ended up doing the same work.

Comment

This decision highlights already established principles that employees who are substantially doing the same work as other employees should be paid the same and should be entitled to the same employment conditions. The Industrial Tribunal’s decision reassures employers that distinctions made between categories or posts on the basis of objectively ascertainable reasons, such as experience and qualifications, remain legitimate.

It is highly recommended that grade structures within your company and their defining criteria should be revised periodically to make sure there is no breach of the law.

If you have any queries in relation to the above, please contact Dr Matthew Brincat, Dr Clement Mifsud Bonnici and Dr Lara Pace