8.

The case was thereupon brought before the arbitration board, which submitted the following questions to the Court: 1. Do Article 119 of the EEC Treaty and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women apply to systems of pay in which earnings depend either entirely or in large measure on the results of the work of individual employees (piece-work pay schemes)? If Question 1 is answered in the affirmative, answers are requested to the following additional questions: 2. Are the rules on equal pay contained in Article 119 of the EEC Treaty and in Directive 75/117/EEC of 10 February 1975 on equal pay for men and women applicable in the case of the comparison of two groups of wage earners in so far as the average hourly earnings for one group of piece-workers, consisting predominantly of women and performing one type of work, are appreciably lower than the average hourly earnings for the second group of piece-workers, consisting predominantly of men and performing a different type of work, in so far as it can be assumed that the work performed by the men and women is of equal value? 3. On the basis that one group consists predominantly of women and the other predominantly of men, can requirements be imposed as to the composition of the groups, for example with regard to the number of persons in the groups or the proportion which they represent among the total workforce of the undertaking? Can the directive be applied, if necessary, to procure for two groups of — for instance — female employees the same pay by means of an intervening comparison with a group of male employees? One way in which the problem may be illustrated is as follows: A group of predominantly male workers (Group A) and two groups of predominantly female workers (Groups B and C) perform work of the same value; the average piece-work earnings are highest in the case of Group C, second highest in the case of Group A and lowest in the case of Group B. Can Group B compare itself with Group A and demand that its pay be raised to the level of that of Group A; can Group A thereupon demand that its pay be raised to the level of that of Group C; finally, can Group B thereupon demand that its pay be raised to the new level enjoyed by Group A — which is that of Group C? 4. In determining whether the principle of equal pay has been infringed, does any significance attach to the facts that: (a) one group is involved in predominantly mechanized production, whereas the second group is engaged in working exclusively by hand (as regards the fixing of pay and working conditions); (b) the piece-work rates are determined by negotiation between both sides of industry or by negotiation at local level; (c) it can be established that there are differences in the employee's choice of work rate. If this fact is relevant, who bears the burden of proving that such differences exist?; (d) there are appreciable pay variations within one or both of the groups compared; (e) the fixed portion of the piece-work pay is not the same for both of the groups compared; (f) differences between the two groups exist with regard to paid breaks and freedom to organize one's work; (g) it is not possible to ascertain the factors which have determined the level of the piece-work rate; (h) the work of one of the groups compared involves a particular requirement of physical strength, while the work of the other group has a particular requirement of dexterity; (i) it can be established that differences exist with regard to inconveniences at work such as noise, temperature, and intensive, repetitive or monotonous work?