CELEX: 61985CC0237
Language: en
Date: 1986-05-27 00:00:00
Title: Opinion of Mr Advocate General Lenz delivered on 27 May 1986. # Gisela Rummler v Dato-Druck GmbH. # Reference for a preliminary ruling: Arbeitsgericht Oldenburg - Germany. # Equal pay for men and women - Classification system. # Case 237/85.

OPINION OF MR ADVOCATE GENERAL LENZ
      delivered on 27 May 1986 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      A —
      The proceedings before us today arise out of a reference by the Arbeitsgericht Oldenburg and concern the interpretation of 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.
      The facts of the case to which that directive is to be applied are as follows.
      The plaintiff in the main proceedings is a skilled worker in the printshop operated by the defendant in the main proceedings. According to the Arbeitsgericht's order, she operates a simple folding machine, which she adjusts herself, and several smaller machines. Her duties also include the packing of prospectuses and forms ready for dispatch. In the plaintiff's view, work with the folding machine occupies 30 to 50% of her working hours. She says that she also adjusts the smaller machines herself and that some of the parcels she has to pack weigh well over 20 kg. In the proceedings before the national court, however, the defendant has asserted that the plaintiff works only 10% of the time on the folding machine and 20% of the time on the smaller machines. According to the defendant, the adjustment of the smaller machine is not done by the plaintiff, 70% of the plaintiff's duties are so-called sedentary work and the parcels packed by her weigh no more than one kilogram.
      The employment relationship is governed by the framework wage agreement entered into on 6 July 1984 between the Bundesverband Druck eV and the trade union for the printing and paper industry, on which individual rights could be based as from 1 October 1984. The agreement contains a description of wage groups, the criteria for which, according to the order for reference, are not to be understood as being cumulative in all cases. Wage Group III (according to which the plaintiff is paid) covers
      ‘Activities which
      
               (i)
            
            
               may be executed with moderate previous knowledge and instruction or training related to the particular job;
            
         
               (ii)
            
            
               make moderate demands as regards accuracy or conscientiousness;
            
         
               (iii)
            
            
               require moderate or occasionally great muscular effort; (
                     1
                  )
            
         
               (iv)
            
            
               involve slight or occasionally moderate responsibility for equipment and/or own work.’
            
         Wage Group IV covers
      ‘Activities which
      
               (i)
            
            
               require previous knowledge on the basis of instruction or training related to the particular job, occasionally a fair degree of occupational experience;
            
         
               (ii)
            
            
               make moderate demands as regards accuracy or conscientiousness;
            
         
               (iii)
            
            
               involve moderate, occasionally great effort 1 of different kinds, particularly as a result of work dependent on machines;
            
         
               (iv)
            
            
               involve moderate responsibility for equipment and/or the product of the work.’
            
         Considerable assistance in the interpretation of the framework wage agreement is afforded by the examples given in the annex to the agreement, according to which the following activities, inter alia, fall under Wage Group IV:
      
               ‘3.
            
            
               Adjustment and operation of simple machines and processing apparatus.
            
         
               4.
            
            
               Heavy packing, dispatch and loading work.
            
         
               7.
            
            
               Counting and sorting proof sheets by hand.’
            
         It must also be borne in mind, according to the order for reference, that where an employee performs several activities, his wage classification should be made according to the main activity.
      The plaintiff takes the view that if the wage agreement were correctly interpreted and applied in the light of the principle of equal treatment she should have been paid in accordance with Wage Group IV since 1 October 1984; she has therefore brought a claim for the difference between that wage and her actual wage. The defendant does not consider that justified. It takes the view that the plaintiff's job involves only ‘slight demand on the muscles’, so that she should in fact be paid in accordance with Wage Group II, which covers activities which ‘place a slight to moderate demand on the muscles’.
      The Arbeitsgericht has misgivings, first of all, as to whether the framework wage agreement is compatible with Directive 75/117, Article 1 of which 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.
      In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.’
      Those misgivings arise from the fact that the agreement refers to criteria such as ‘demand on the muscles’, ‘muscular effort’ and ‘heavy work’. According to the Arbeitsgericht, in practice reference is made only to significant expenditure of energy, typical of men's work, and to the use of large muscle groups (in determining demand on the muscles) or, with regard to the more general concept of heavy work, to the level of demand on muscles. In general women are less able to meet such criteria, since their muscle power is lower, and those criteria might therefore be discriminatory for the purposes of the directive referred to above.
      Leaving aside the question of compatibility, the problem arises whether the directive requires a particular interpretation of the framework wage agreement with regard to the question on what performance, that of men or that of women, such criteria should be based. Of the four possible standards — male values for all jobs; male values for male employees and female values for female employees; average values; female values for all jobs — the first two, in the view of the Arbeitsgericht, may be ruled out as incompatible with the principle of equal pay for men and women. The Arbeitsgericht considers that the fourth possibility gives women a better chance of earning the same as men and therefore inclines toward that interpretation as a means of avoiding discrimination.
      Finally, the Arbeitsgericht states that when it is not expressly laid down in wage agreements that the performance of women is to be taken as a standard, the general practice is to refer to that of men. In a case in which it is not made clear that reference should be made to the performance of women, it may therefore be appropriate to hold that such agreements are incompatible with the principles laid down in the directive.
      The Arbeitsgericht was not itself able to draw reliable conclusions from Community law by an order made on the basis of the hearing of 25 June 1985, registered at the Court of Justice on 31 July 1985, it stayed the proceedings and referred the following questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty:
      
               ‘(1)
            
            
               Does it follow from the provisions of Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women that in job classification systems no distinction may be made on the basis of:
               
                        (a)
                     
                     
                        the extent to which a job makes demands on or requires an effort of the muscles;
                     
                  
                        (b)
                     
                     
                        whether the work is heavy or not?
                     
                  
         
               (2)
            
            
               If Question (1) is answered essentially in the negative:
               As regards the decision as to:
               
                        (a)
                     
                     
                        the extent to which a job makes demands on or requires an effort of the muscles;
                     
                  
                        (b)
                     
                     
                        whether the work is heavy or not, is reference to be made to the extent to which it makes demands on or requires an effort from women or whether it is heavy for women?
                     
                  
         
               (3)
            
            
               If Question (2) is answered in the affirmative:
               Does a job classification system which uses the criterion of demand on or effort of the muscles or the criterion of heaviness of work but does not make clear that it is significant to what extent the work makes demands on or requires an effort of the muscles as regards women or whether the work is heavy for women satisfy the requirements of the directive?’
            
         Observations were submitted by the defendant in the main proceedings, the United Kingdom and the Commission of the European Communities. I shall discuss those observations in Part B.
      B —
      In my view the following remarks are appropriate.
      
               1.
            
            
               Let me refer first of all to two judgments of the Bundesarbeitsgericht [Federal Labour Court] of 17 April 1985, sent to us by that court, which throw light on the question what the practice in the Federal Republic of Germany with regard to such assessment criteria now is and what it will become in the future under the influence of the Bundesarbeitsgericht's decisions. That is relevant because, as we have seen, the Arbeitsgericht is concerned with such considerations drawn from the practice of other courts. It is not clear from the documents before the Court whether or not the Arbeitsgericht was aware of those judgments. I shall therefore summarize their content.
               Both judgments concern the framework wage agreement for the printing industry of 1 April 1980, that is to say, a predecessor of the agreement at issue in the main proceedings. Both cases dealt with the question whether the female plaintiffs carried out heavy work for the purposes of Wage Group IV and could therefore claim to be paid accordingly (in the result their claims were dismissed). In interpreting the term ‘heavy work’ the Bundesarbeitsgericht attributes particular importance to heavy demands on physical strength. According to the identical wording of both judgments, the key factor is the physical effort involved, in which the expenditure of energy, the rhythm of the work, the speed and pattern of movement and the posture required are all elements. When those criteria are used (and the repeated movement of lighter loads for a longer period is also taken into account) there is no danger, says the Bundesarbeitsgericht, of any discrimination between women and men as prohibited by Article 3 of the Grundgesetz [German Basic Law]. That is of course true, as the Bundesarbeitsgericht also emphasizes, only where due account is taken of the fact that women are physically less strong, that is to say, when lower average values of physical capacity are laid down for women and lower average values for expenditure of energy are applied.
               It is thus clear that the Bundesarbeitsgericht applies the second of the four possibilities put forward by the Arbeitsgericht in the context of its second question, (
                     2
                  ) a possibility which the latter dismisses as unacceptable in the light of the principle of equal treatment. In its order the Arbeitsgericht states: ‘the second alternative is not compatible with the principle of equal pay’ (at p. 17).
            
         
               2.
            
            
               Turning now to the Question (1) posed by the Arbeitsgericht, whether Council Directive 75/117 prohibits the making of distinctions in job classification systems according to the heaviness of the work and its demands on muscles, it will be recalled first of all that according to the defendant in the main proceedings that question should be answered in the negative. It takes the view that the needs of industry require such criteria; otherwise the wage structure would be unfair. It emphasizes, however, that the application of such criteria cannot be restricted to certain types of muscular demands; the muscular demand associated with work performed in a standing position and work with the fingers must also be taken into account.
               The United Kingdom takes a similar attitude. In its view classification criteria in respect of which members of one sex maybe regarded as having more natural ability cannot be ignored when they are necessary for an objective assessment of the work. To hold otherwise would be to ignore reality and to tolerate discrimination against the sex having more natural ability (a view which cannot be ascribed to the authors of the directive). The United Kingdom would perhaps have doubts if there were in fact a tendency in German practice, in the application of criteria such as those in issue here, to ignore the movements of small muscle groups and thus treat less favourably activities which are primarily carried out by members of one sex.
               The Commission's view is along the same lines, and let me say right away that I think our assessment should take the same approach.
               That follows directly from examination of the scheme of Article 1 of the directive, which I have quoted above. Its effect, with regard to job classification systems, is that common criteria must be used for men and women workers and that the system must be organized in such a way as to exclude discrimination on grounds of sex.
               That can only mean that it is not merely through the use of common criteria, which the framework wage agreement concerned in the main proceedings contains, that discrimination must be excluded. In other words, it is not necessary for each individual criterion to be drawn up in such a manner as to rule out discrimination, but the system as a whole must be framed with that purpose in mind.
               If it appeared that, in spite of the guidelines for their application laid down by the Bundesarbeitsgericht, the use of common criteria, such as those in this case (demand on muscles, heaviness of the work), would probably lead to a degree of discrimination against women in this more narrow domain, that would not mean that under the principles of the directive such criteria could not be applied. The important question is whether discrimination is inherent in the general scheme of the agreement or whether the common criteria as a whole are selected, defined and weighted in such a way as to avoid discrimination on grounds of sex. If some work requirements are more easily fulfilled by men, they must be balanced by other requirements, carrying approximately the same wage, which are more easily fulfilled by women, so that in the aggregate men and women will have the same opportunities under the agreement.
               From the point of view of Community law nothing more can be said in that regard. As may be inferred from Article 2 of the directive, any further findings are a matter for the national court. It is thus for the national court to decide whether the wage agreement in question meets these criteria.
            
         
               3.
            
            
               In Question (2) the Arbeitsgericht wishes to know whether the view to which it inclines is correct: that is to say, whether it follows from the directive that in deciding to what extent a job makes demands on the muscles and whether or not it is heavy, reference must be made to whether or not that is the case for women.
               The defendant in the main proceedings has argued in that regard that if it is assumed that the key factor is the job carried out and not the qualification for the job, the directive does not require that female values should be used or that different standards should apply for men and for women. The calculation of wages in such a manner would not be consistent with the requirement of equal treatment.
               The United Kingdom takes a similar view. It argues first of all that the fact that the first paragraph of Article 1 of the directive speaks of work to which equal value is attributed does not mean that an assessment must be made on the basis of the relative demands which a job makes on the physical resources of men and women.
               If that were the case, an employer could not pay particularly high wages for jobs which were particularly strenuous but would have to pay a considerable number of workers at the highest rate. That could not have been the intention of the authors of the directive.
               In the view of the United Kingdom it is quite permissible, under the directive, to establish wage classifications reflecting demand on the muscles and the heaviness of the work and to use male values as a reference if those wage rates correspond to the effort actually required in carrying out the job. The question is thus whether classifications of that kind are based on objectively justifiable grounds. If there are such grounds, that is to say, if a job is in fact particularly strenuous, it must be possible to pay higher wages for such a job according to corresponding criteria since that may be economically necessary in order to attract the relatively few persons who are able to do such a job.
               The Commission, finally, has argued that the directive does no more than lay down the principle that a job classification system must be organized in such a manner as to preclude discrimination on grounds of sex; it thus requires that the system as a whole should entail no discrimination and that it should be organized in such a manner that individual classification decisions are in accordance with the principle of equal treatment. As is clear from Article 2, the directive assumes that its application in particular cases is a matter for the national courts; no precise rules can be inferred from the directive to the effect that in using the classification criterion of ‘demand on the muscles’ female values must be used. At most it may be said that the application of the principle of nondiscrimination and the avoidance of discrimination in individual cases may require that female values should be given particular weight or allowed to prevail in the assessment of specific cases.
               With regard to the issues addressed by Question (2), the Arbeitsgericht's remarks may be found quite convincing; it said that discrimination against women could arise not only when in using the classification criteria of ‘heaviness of the work’ and ‘demand on the muscles’, reference was made to male values or to average values common to both sexes (which will in general probably be more difficult for women to achieve than men, as the United Kingdom correctly pointed out) but also where special female values are used only for women, as the judgments of the Bundesarbeitsgericht suggest. Since under such a system women may obtain a higher classification for a job requiring relatively little effort, the result may be that women have less chance of obtaining such jobs because preference is given to men, who will be paid less because the demand on their muscles is lower.
               Although the Arbeitsgericht's view (reference only to female values) is certainly attractive, it must not be forgotten that the result could be that above a relatively low level of muscular demand — from the point of view of male values — there would be no further wage differentiation. Differentiation may however be essential for a fair and appropriate wage structure, in part because it might otherwise be difficult to find persons willing to take particularly heavy jobs.
               It may be imagined that problems of that kind became apparent during the preparation of the directive and that is why no specific rules were laid down for the practical application of the principle of equal treatment in the establishment of classification criteria. Indeed, all that can be drawn from the directive — and here one must agree with the Commission — is the general principle that a classification system as a whole must not be discriminatory (which may for instance be the case, as the United Kingdom has pointed out, where such a system attaches too much importance to criteria such as the heaviness of work and demands on the muscles to the detriment of other criteria). It is also implicit in the directive that in each individual case efforts must be made to avoid discrimination, and as the Commission pointed out, it may sometimes be appropriate to apply female values in the use of criteria such as those at issue in the main proceedings.
               There is little more that can be said with regard to Question (2) as it is phrased; that is to say, it does not appear possible to answer it generally in the affirmative.
            
         
               4.
            
            
               If it is desired to go on to consider Question (3) (I need not repeat it here), which was raised only in the event that an affirmative answer should be given to Question (2), I can but adopt the position proposed by the Commission.
               It is clear that the directive does not lay down the principle that in applying the criterion of demand on or effort of the muscles or the criterion of heaviness of work, reference must be made to the extent to which the work makes demands on or requires an effort from women or whether it is heavy for women. It follows that there is no general requirement that anything of that nature should be expressed in a job classification system.
               If in a particular case (again following the Commission's point of view) it appears that discrimination against women can be avoided only if reference is made to their capacities, the question arises, if such a procedure is not expressly provided for, whether the scheme can be interpreted in such a nondiscriminatory manner. If so, there is nothing to stop the system from being applied in a manner free of discrimination, and it is in no way at variance with the directive. If not, however, and if discrimination cannot be avoided in a particular case by appropriate interpretation, it can only be held that such a system is not in conformity with the directive and must therefore be changed so as to lay down criteria which do not discriminate against women.
               That is probably all that needs to be said with regard to Question (3).
            
         C —
      In view of all the foregoing, I propose that the Court reply to the questions referred by the Arbeitsgericht Oldenburg in the following manner:
      
               (1)
            
            
               A job classification system in which distinctions are made according to the extent to which a job makes demands on or requires an effort of the muscles or to whether or not the work is heavy is not contrary to Council Directive 75/117 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 if the system as a whole is so structured as to preclude discrimination on grounds of sex.
            
         
               (2)
            
            
               Directive 75/117 contains no general principle to the effect that the decision as to what extent a job makes demands on or requires an effort of the muscles or whether or not the work is heavy must always be based exclusively or primarily on the extent to which the job is demanding or heavy for women. The principle of nondiscrimination may however require in particular cases that in order to avoid discrimination against women in classification particular reference should be made to their physical performance.
            
         
               (3)
            
            
               A job classification system which uses the criterion of demand on or effort of the muscles or the criterion of heaviness of work but does not make clear that it is significant to what extent the work makes demands on or requires an effort of the muscles as regards women or whether the work is heavy for women is compatible with the principles laid down in Directive 75/117. That may not be so, however, when in a particular case differentiation between the physical capacities of men and women is necessary in order to preclude discrimination on grounds of sex and such an interpretation of the system in question is not possible.
            
         (
            *1
         )	Translated from the German.
      (
            1
         )	Emphasis added.
      (
            2
         )	See above, at p 2104.