C P S U
E Q U A L I T Y R E P O R T
T H E R E S A D W Y E R , ,
E Q U A L I T Y O F F I C E R
A N N U A L D E L E G A T E
C O N F E R E N C E
G A L W A Y
2 0 1 3
1

The Convention on the Constitution was established by a resolution of both Houses of the Oireachtas for the purpose of considering and where appropriate making recommendations on a number of issues that may in the future be amendments to the Constitution. It is made up of 100 people selected from Political Parties and from the electoral register with a balance in terms of age, gender etc. who are representative of all walks of Irish society. The Convention will complete its work within 12 months and the Government will respond to any recommendations that are made within 4 months. The topics under discussion are:

Reducing the Presidential term of Office to 5 years and aligning it with local and European elections.

Reducing the voting age to 17.

Review of the Dail electoral system giving Irish citizens resident outside the State the right to vote on Presidential elections at Irish Embassies or otherwise.

Provision for same sex marriage.

Amending the clause on the role of women in the home and encouraging greater participation of women in public life.

Increasing the participation of women in politics.

Removal of the offence of Blasphemy from the Constitution.
The Irish Congress of Trade Unions has made a submission to the Convention on the topic of same sex marriage although they prefer to use the term marriage equality. The Unions affiliated to Congress, which include CPSU, make up almost
800,000 people in the workplace across Ireland. In their submission Congress highlighted the Trade Union commitment “….. to the achievement of full equality for lesbians, gay men, bisexuals and transgender people in terms of legal equality, and also to challenge prejudice against LGBT people that remains in Irish society.” The
Civil Partnership legislation that came into force in 2011 provides a number of very important benefits for LGBT workers but stops short of marriage. In their submission
Congress references the Marriage Equality Report “Missing Pieces” that identified over 160 differences between civil partnership and civil marriage which are broken down into 7 categories as follows:
2

1. The family home
2. Finance
3. Legal procedures
4. Administration
5. Parent and Child
6. Immigration
7. Equality
At the 2009 ICTU Biennial Delegate Conference a motion supporting marriage equality was passed by delegates who believe that civil marriage is the only option that affords equal rights to same sex couples. The text of the motion is as follows:
Motion 32. Equal Opportunities for Same-Sex Couples
Congress condemns the failure of Governments North and South to ensure
that same sex couples have equal rights and opportunities. Congress is dismayed at the outrageous remarks directed against the Gay and Lesbian community by a Minister in the Northern Ireland Assembly. Congress also notes that gay and lesbian couples in the Republic of Ireland do not enjoy parity of esteem with their brothers and sisters in Northern Ireland, whose rights and civil liberties are enshrined in the Civil Partnership Act. The failure to enact a Civil Partnership Bill is indicative of the Government’s approach to the Equality Agenda, reflected in the undermining of the equality infrastructure of the Republic of Ireland Conference calls for a renewed campaign by the incoming Executive Council and by affiliated unions for legal recognition of the rights of same sex couples and affirms civil marriage as the only option that affords equal rights to same sex couples.
Congress reaffirms its commitment to defending the human rights of all minority groups, including members of the LGBT community, and denounces any attempt to discriminate against them or to denigrate them in any way.
It is the view of Congress that an opportunity has been provided by the establishment of the Constitutional Convention to help make marriage equality a reality for LGBT members.
A copy of the ICTU submission is available on the following link http://www.ictu.ie/equality2013/03/19/submission-on-same-sexmarriage-to-the-constituion
The Convention met on the weekend of 13 th and 14 th April 2013 to discuss the issue of same sex marriage and to report on recommendations to the Houses of the
Oireachtas. On the basis of a vote with 79% to 19% (1% had no opinion) in favour,
3

the Convention decided to recommend that the Irish Constitution be changed to allow for civil marriage for same sex couples. The following is a summary of the recommendations:

Should the amendment be permissive (the State may enact laws providing for same sex marriage) or directive (the State shall enact laws providing for same sex marriage). The Convention decided it should be
Directive by 78% to 17% with 1% with no opinion.

Should the State enact laws incorporating changed arrangements in regard to the parentage, guardianship and the upbringing of children.
The Convention voted 81% to 12% (2% had no opinion) that the State should enact such laws.
It is now a matter for the Constitutional Convention to draft a report on these recommendations for Government who on receipt of the recommendations have for months in which to debate the matter in the Oireachtas. If agreement is reached then a time frame must be decided for a Referendum.
The new EU Directive on Parental Leave (Directive 2010/18/EU) signed on the 8th
March 2010 has been transposed into Irish law by Statutory Instrument 81 of 2013 entitled European Union (Parental Leave) Regulations 2013. Where a parent had, up to now, exhausted their Parental Leave entitlement (14 weeks) but still have a qualifying child they can now avail of the additional 4 weeks Parental Leave.
The new provisions in the legislation are:
Increased Parental Leave
The period of Parental Leave has been increased from 3 months (14 weeks) to 4 months (18 weeks) with the extra month being non-transferable between parents.
This means that each parent is entitled to 18 weeks Parental Leave. However the leave may be transferred from one parent to another provided they are employed by the same employer and provided that each parent retains at least one month’s leave.
The European Social Partners included this provision in the Directive in order to encourage a more equal take up of the leave by both parents. The Civil Service is deemed to be the one employer irrespective of the Department/Office you work in.
Flexible Working Arrangements
The legislation provides a right to request flexible working arrangements on return from leave but the granting of such a request is at the discretion of the employer. A request for changes to your working hours or pattern of attendance or both must be
4

made no later than six weeks before the officer commences their period of Parental
Leave. The employer must consider such a request and not later than four weeks after receipt of the request inform the officer, in writing, that the request is refused or where such a request is agreed the employer must prepare an agreement setting out the new hours and pattern of attendance which must be signed by both parties.
Age of a Qualifying Child
There is no change to the age of a qualifying child. The Statutory age of the child remains at 8 years of age but in 2010 the union was successful in getting agreement to increase the age to 13 years for Civil Servants. The age of a child with a Disability remains at 16 years.
Children with a Long-Term Illness
Up to now Members States were required to assess the need to adjust the conditions for access and modalities of application of Parental Leave to the needs of parents of children with a disability up to the age of 16 years. The new legislation includes children with a long-term illness up to the age of 16 years. The Regulations define a ‘long-term illness’ as an illness ‘…the effect of which is that the level of care required for the child is substantially more than the level of care that is generally required for children of the same age who do not have a ny such long term illness’.
The Government are drafting a new Family Leave Bill which will consolidate all existing family leave such as Maternity, Adoptive, Parental and Carers Leave. The intention behind this new piece of legislation is to address any discrepancies and anomalies between the various Acts and streamline the legislation. The Irish
Congress of Trade Unions and the National Women’s Council of Ireland are seeking to have the following proposals included in the Bill.
1. Two weeks paid paternity leave for fathers. We currently have three days paid paternity leave for fathers in the Civil Service.
2. The right to request flexible working hours by all parents regardless of whether they are returning from parental leave or not.
3. Increased the period of time that mothers can take breaks for breast feeding at work from the statutory position of six months to at least one year. In the
Civil Service the Unions have agreement that this period is two years.
However there is no indication from the Heads of Bill that the Minister for Justice and
Equality will advance these proposals.
5

Earlier this year the Department of Public Expenditure and Reform issued a revised
Career Break Circular 4/2013 which revokes Circular 18/1998 and includes a new provision that allows officers to take a Career Break with the purpose of taking up employment in the private sector. A Civil Servant can still apply for a career break up to a maximum of three Career Breaks which when aggregated, do not exceed the limit of twelve years in total. The period of the Career Break remains the same in that it can be taken in periods of not less than six months and not more than five years for family reasons, other domestic reasons, travel or educational purposes. It can be taken in not less than six months and not more than three years for the purpose of becoming self-employed and now includes the new provision of taking up employment in the private sector. However, members taking a career break to work in the private sector should note Section 17 to 30 of the Circular in terms of the procedures that must be followed in relation to conflict of interest issues and the penalties that may be imposed.
The Union had two outstanding issues that were raised directly by DPER with the
General Secretary during the talks on Croke Park 2.
The first relates to paragraph 32 and 33 of the document on page 9. In paragraph 32 the fourth bullet point refers to staff previously work-sharing being offered a full time post and has a foot note number 5. In that footnote it clearly states that a Civil
Servant returning from career break could be offered a “recognised shift pattern”. In paragraph 33 it states “where a Civil Servant refuses the offer, given, the HR
Manager/Head of Department is under no further obligation to provide employment and deem the refusal to be a resignation”.
The practice to date has been that shift arrangements are voluntary and the Union was not prepared to accept a provision where a member returning from career break can be assigned to a shift arrangement and that refusal of this offer can be considered a resignation.
The second issue of concern related to page 12 paragraph 46 (1b) of the document.
The Union feels that the wording in this paragraph should have been changed as a
Civil Servant who is dismissed from his/her private sector employment may wish to assert their employment rights and take an unfair dismissals case. At the end of that process the dismissal will be deemed fair or unfair. If an officer is due to resume work in the Civil Service while this process is in train there will be implications for all concerned. However DPER issued the circular without resolving these issues and the General Secretary has brought this matter to the Civil Service General Council.
In 2001 the then Minister for Finance announced a crèche initiative in the Civil
Service in response to a shortage of affordable childcare. The initiative was aimed at increasing female participation in the workplace, improving the quality of childcare provision as well as increasing the number of childcare places available in the State.
Since then the number of Civil Service crèches has increased to 7 and are located in
6

Dublin (Mount Street and Marlborough Street), Backweston (Kildare), Athlone, Ennis,
Cork and Sligo.
These crèches are run by external operators under licence who are responsible for all the management and running costs of these facilities. Up to now the State subsidised these crèches through the Office of Public Works that dividing the accommodation in some cases the utility and other costs for the operation and maintenance of the crèche facilities. In addition the State has a role in administering and monitoring the Civil Service crèches through the Department of Public
Expenditure and Reform. However in December 2012 the Civil Service Staff Panel of
Unions were advised that Focused Policy Assessment (FPA) of this initiative was recently carried out by the Central Evaluation Expenditure Unit of the Department of
Public Expenditure and Reform. The result of this evaluation is that it has now been recommended
“ that no further public monies be spent in respect of the Civil
Service crèches and that the State makes structured and planned exit from this initiative”.
The Minister for Public Expenditure and Reform Mr. Brendan Howlin TD has accepted this recommendation and decided that the State will no longer subsidise or have any management role in the Civil Service crèches. All crèche operators were notified of the decision by the Department of Public Expenditure and Reform and the onus is then on the crèche operators to inform parents. The information available to the Union was that the subsidies would be withdrawn in a planned and structured manner to ensure extensive notice to all parties concerned but this will not happened until such time as the current licences with the operators expires in
September/October 2013 for most crèches. It is a matter for the current crèche operators to decide if they wish to continue with the new commercial licence after that date where they will have to cover all of the costs associated with the running of the crèche. It will also be a matter for the crèche operators as to whether or not there will be any additional or increased costs for parents in this new arrangement. The respective crèche operator will advise parents on developments.
The rules governing PRSI contributions require a person for whom a contribution is made to work at least one day in a PRSI contribution week. A PRSI contribution week is defined as each successive period of 7 days starting January 1 st each year.
Members who are on a reduced pattern of attendance under the Worksharing
Scheme should note that their pattern of attendance may affect their PRSI contributions and consequently their entitlement to social insurance benefits.
For example, 1 st January 2013 falls on a Tuesday therefore the PRSI contribution week throughout 2013 is Tuesday to Monday. Members who Workshare on a pattern of a week on/week off from Tuesday to Monday in 2013 will only work every second contribution week which means that they will have 26 contributions recorded as opposed to 52.
7

In the Civil Service the Union negotiated an agreement whereby members wishing to change their pattern of attendance in order to be PRSI compliant would be facilitated. Members wishing to avail of this facility should submit their request in writing to their Line Manager as soon as possible.
The Shorter Working Year’s Scheme was introduced under Circular 14/2009 at the end of April 2009 and included a provision for a review of the scheme after a period of three years which means the scheme was due to be reviewed in 2012. However on the basis that applications for 2013 were due in October/November 2012 the
Department of Public Expenditure and Reform extended the scheme for a further year. Therefore the provisions of Circular 14/2009 will continue to apply in 2013.
Members who go on maternity leave should note that while you continue to receive your salary as normal from your employers you are not liable to pay tax on the portion of your salary attributed to maternity benefit. If your employer has not made the necessary adjustments to your salary then members should apply for a tax refund. In order to do this you will need to provide the following documentation.
1. A copy of your P.60 for the year in question with a statement of earnings from your employer.
2. Statement from the Department of Social & Family Affairs giving the amount of maternity benefit paid.
3. A letter from your salary section confirming that maternity benefit was included in your gross pay.
There is a four year claim limit in that you can claim retrospectively for the previous four years. Members should note that one of the provisions in Budget 2012 is that
Maternity Benefit will now be liable for tax in the same way as any other income.
International Women’s Day is held on the 8 th March each year.
International Women’s Day originated in the USA at the beginning of the 20 th century at a time of major growth in the industrialized world. There was growing unrest among women who worked in the textile industry in what are now commonly known as “sweatshops” regarding pay, shorter hours and voting rights. In 1908, 15,000 women marched through New York to protest about dangerous working conditions and low wages and voting rights. They also called for a shorter working day of 10 hours! Police attacked the protesters and there were a number of casualties. The following year a memorial march took place in the USA on the 28 th February 1909 and National Women’s Day was observed across the United States. In 1911
8

Germany, Austria, Denmark and Switzerland celebrated the first International
Women’s Day in Europe on 19 th March. On this day more than one million women attended rallies in a quest for the right to vote, the right to hold public office, the right to work and end discrimination. Less than a week later on the 25 March, the tragic
'Triangle Fire' in New York City took the lives of more than 140 working women, most of whom were Italian and Jewish immigrants. This tragic event drew attention to working conditions and labour legislation in the United States and became a focus of subsequent International Women's Day events. In 1913 on the eve of World War 1
Russian women held their first International Women’s Day. The following year women in countries across Europe held rallies to protest about the war and show solidarity with their sisters.
In 1917, on the last Sunday of February Russian women began a strike for ‘bread and peace’ in response to the death of over two million Russian soldiers in war.
Despite political opposition the women continued the strike until four days later the
Czar was forced to abdicate and the provisional Government conceded women’s right to vote. The date the women’s strike commenced was the 8 th March and this became International Women’s Day across the word.
This year events organised by ICTU will take place in Dublin to co-inside with the
2013 commemoration of the 1913 Lockout.
The judgement on the 5 questions referred to the High Court (Dublin) to the Court of
Justice of the European Union (Luxembourg) for decision was delivered on 28 th
February 2013. The two key issues for the Union were in relation to the comparators we can use and whether or not industrial relations agreements can be used as objective justification as a defence in this equal pay case. So in essence this appeal concerns whether or not the difference in pay between the claimants and the comparators is objectively justified in circumstances where prima facie indirect discrimination has been established. The five questions are as follows:-
Question 1 Objective justification
In circumstances where there is prima facie indirect gender discrimination in pay, in breach of Article 141 (now Article 157 TFEU) and Council Directive 75/117/EEC, in order to establish objective justification, does the employer have to provide:
a) Justification in respect of the deployment of the comparators in the posts occupied by them;
b) Justification of the payment of a higher rate of pay to the comparators; or c) Justification of the payment of a lower rate of pay to the complainants.
9

Comparators
Question 2
In circumstances where there is prima facie indirect gender discrimination in pay, in order to establish objective justification, does the employer have to provide justification in respect of: a) The specific comparators cited by the complainants and/or b) The generality of comparator posts.
Question 3
If the answer to Question 2(b) is in the affirmative, is objective justification established notwithstanding that such justification does not apply to the chosen comparators?
Industrial Relations
Question 4
Did the Labour Court, as a matter of Community Law, err in accepting that the
“interests of good industrial relations” could be taken into account in the determination of whether the employer could objectively justify the difference in pay?
Question 5
In circumstances where there is prima facia indirect gender discrimination in pay, can objective justification be established by reliance on the industrial relations concerns of the respondent. Should such concerns have any relevance to an analysis of objective justification?
OPINION OF THE ADVOCATE GENERAL
The Opinion of the Advocate General was published on 29 th November 2012 and the judgement was delivered on 28 th February 2013. The following is a synopsis of that
Opinion and that of the judgement delivered in the CJEU on 28 th February last.
The Opinion of the Advocate General (AG) was quite positive from our point of view.
In the first question as to what the employer must provide in terms of objective justification the AG deemed that it was “…. unnecessary to determine whether the anomaly lies with the higher pay or the lower… the determining factor is that there is a disparity between the two.”
In question 2 and 3 regarding the comparators the AG deemed that it was up to the claimants to provide a valid comparator demonstrating the existence of a group of persons in an equivalent situation who received different treatment in terms of their
10

rates of pay. In other words it was up to us to establish that
“……a “relatively large” number of men, or “enough” of them, are engaged in equivalent work and are paid at a higher rate than the appellants”..... this must be done in a way that “….suggests something that is systemic or indicative of a pay structure that is intrinsically discriminatory, rather than a “fortuitous” or
“short-term” phenomenon.”
In question 4 and 5 regarding industrial relations the AG deemed that industrial relations concerns may be relevant to an analysis of objective justification but “…. cannot , of itself, constitute a sufficient basis on which to justify differentiating pay on grounds of sex?”
However he went on to say that in the circumstances of the case
“… such relative weight must depend on the length of time taken by the administrative reorganisation during which the disputed difference in pay arose and continued.”
JUDGEMENT OF THE CJEU
The CJEU judgement is similar to the AG’s Opinion in that it has decided in question
1 that it is the difference in pay itself between the complainants and the comparators that the employer must objectively justify.
In terms of question 2 and 3 the CJEU decided that the discrimination must relate to the comparators who “….are described by valid statistics which cover enough individuals, do not illustrate purely fortuitous or short term phenomenon, and which, in gener al appear to be significant….”.
In question 4 and 5 the CJEU decided that
“…..the interests of good industrial relations may be taken into consideration by the National Court as one of the factors among others in its assessment of whether differences between the pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex and are compatible with the principle of proportionality.”
The decision of the CJEU will be sent back to the High Court who in turn will decide the next stage of the process. However the Union is still of the view that the judgement is quite positive from perspective.
Work is continuing on the data base where information is now being cross checked with our membership system. The Union will not be proceeding with cases on behalf of members who have resigned from the Union. However anyone who is in membership up to the time they were promoted or retired will continue to be represented by the Union in this case.
END
11