Different training can justify different pay
The European Court of Justice recently issued its judgement in the case of Angestelltenbetriebsrat der Wiener Gebietskrankenkasse (C-309/97) in which it had been asked to consider the meaning of “some work” in relation to the principles of Community law on equal pay.
This was a reference from the Oberlandesgericht in Vienna for a preliminary ruling under Article 177 (now re-numbered as Article 234) of the Treaty of Rome. The case arose from a dispute about salaries of employees in the Wiener Gebietskrankenkasse (Vienna Health Fund) and their classification in specific remuneration categories. In Austria the medial institutions concerned were entitled to employ three different classes of psychotherapists – firstly, doctors who had completed training either as general practitioners or specialists, secondly, graduate psychologists qualified to practise in the health sector, and lastly, those who were neither doctors nor psychologists but who had general education and had undergone specialised training in psychotherapy. The psychotherapists with a degree in psychology were paid more than doctors and therefore fell within different remuneration classes within the Health Fund. It was argued that these two categories of psychotherapists should receive the same pay and therefore should be within the same remuneration class; it was noted that most of the psychotherapists receiving lower salaries were women.
The Vienna court asked the Court of Justice whether the terms “the same work” and “the same job” apply, for the purposes of Article 119 of the Treaty of Rome or Directive 75/117 on Equal Pay for Men and Women, where the same tasks are performed over a considerable length of time by persons whose qualifications to exercise their profession are different. Following the entry into force of the Treaty of Amsterdam on 1 May 1999 Article 119 has been amended and re-numbered as Article 141; Article 141 of the Treaty of Rome is as follows:
Article 141 (ex Article 119)
Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
For the purposes of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment with this employer.
Equal pay without discrimination based on sex means:
That pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; that pay for work at time rates shall be for the same job.
Article 1 of the Equal Pay Directive provides that “the principle of equal pay for men and women outlined in Article 119 of the Treaty…means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration”.
The Court of Justice noted that it had consistently held that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations. The Court considered that it was necessary to ascertain whether, taking into account a number of factors such as the nature of the work, the training requirements and the working conditions, the various psychotherapists were in a comparable situation. It was also stated that where seemingly identical tasks are performed by different groups of persons who do not have the same training or professional qualifications for the practice of their profession, it was necessary to ascertain whether, taking into account the nature of the taaks that may be assigned to each group, the training requirements for performance of the tasks and the working conditions under which they were performed, the different groups did the same work within the meaning of Article 119.
Professional training was said not merely to be one of the factors which could justify different pay for doing the same work, but could be one of the possible criteria for determining whether or not the same work was being performed.
In the case of the psychotherapists it was held that although their activities seemed identical, in treating their patients they drew on skills and knowledge acquired in different disciplines, medicine on the one hand and psychology on the other; it was also held that although the doctors and the psychologists both performed psychotherapy, the doctors could perform other tasks in a field which was not open to psychologists. In these circumstances, therefore, these groups of doctors and the psychologists had received different training and because of the different scope of their qualification they were called on to perform different tasks and therefore could not be regarded as being in a comparable situation.
The Court of Justice therefore held that the term “the same work” does not apply where the same activities are performed over a considerable length of time by persons whose qualification to exercise their profession is different.
A copy of the judgment is available from the Society or on the Court’s website – http://www.curia.eu.int