Specialarbejderforbundet i Danmark v Dansk Industri, formerly Industriens Arbejdsgivere, acting for Royal Copenhagen A/S.
Date: 1995-05-31
13 Moreover the Court has already held that Article 119 prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality (Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, paragraph 32).
24 The Court has, however, held (Case C-127/92 Enderby v Frenchay Health Authority [1993] ECR I-5535, paragraphs 13 and 14) that the burden of proof, which is normally on the worker bringing legal proceedings against his employer with a view to removing the discrimination of which he believes himself to be the victim, may be shifted when that is necessary to avoid depriving workers who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay. Thus in particular where an undertaking applies a system of pay which is wholly lacking in transparency it is for the employer to prove that his practice in the matter of wages is not discriminatory if a female worker establishes, in relation to a relatively large number of employees, that the average pay for women is less than that for men (Case 109/88 Handels- og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening ("Danfoss") [1989] ECR 3199, paragraph 16). Similarly, where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, so that there is prima facie case of sex discrimination, Article 119 of the Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex (Enderby, cited above, paragraphs 16 and 19).
32 Consideration of whether the principle of equal pay has been observed requires a comparison between the pay of workers of different sexes for the same work or for work to which equal value is attributed.
33 Where such a comparison involves the average pay of two groups of workers paid by the piece, it must in order to be relevant encompass groups each comprising all the workers who, taking account of a set of factors such as the nature of the work, the training requirements and the working conditions, can be considered to be in a comparable situation.
36 It follows however from the foregoing that a comparison is not relevant where it involves groups formed in an arbitrary manner so that one comprises predominantly women and the other predominantly men with a view to carrying out successive comparisons and thereby bringing the pay of the group consisting predominantly of women to the level of that of another group also formed in an arbitrary manner so that it consists predominantly of women.
41 A pay differential between two groups of workers does not constitute discrimination contrary to Article 119 of the Treaty and to the Directive if it may be explained by objectively justified factors unrelated to any discrimination on grounds of sex (see in particular Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607, paragraph 30).
42 The national court, which is alone competent to assess the facts, must consequently ascertain whether, in the light of the facts relating to the nature of the work carried out and the conditions in which it is carried out, equal value may be attributed to it or whether those facts may be considered to be objective factors unrelated to any discrimination on grounds of sex which are such as to justify any pay differentials.
43 The reply to the fourth question, paragraphs (a), (f), (h) and (i), should accordingly be that, when ascertaining whether the principle of equal pay has been observed, it is for the national court to decide whether, in the light of circumstances such as, first, the fact that the work done by one of the groups of workers in question involves machinery and requires in particular muscular strength whereas that done by the other group is manual work requiring in particular dexterity and, secondly, the fact that there are differences between the work of the two groups with regard to paid breaks, freedom to organize one' s own work and work-related inconveniences, the two types of work are of equal value or whether those circumstances may be considered to be objective factors unrelated to any discrimination on grounds of sex which are such as to justify any pay differentials.
The fourth question, paragraph (b)
45 Since Article 119 of the Treaty is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals (see in particular Case 43/75 Defrenne v Sabena [1976] ECR 455, paragraph 39).
46 None the less, the fact that the rates of pay have been determined by collective bargaining or by negotiation at local level may be taken into account by the national court as a factor in its assessment of whether differences between the average pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex.