Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss.
Date: 1989-10-17
7 As regards the question whether the Industrial Arbitration Board is a court or tribunal of a Member State within the meaning of Article 177 of the Treaty, it should first be pointed out that, according to Article 22 of the Danish Law No 317 of 13 June 1973 on the Labour Court, disputes between parties to collective agreements are, in the absence of special provisions in such agreements, subject to the Agreed Standard Rules adopted by the Employers' Association and Employees' Union . An industrial arbitration board then hears the dispute at last instance . Either party may bring a case before the board irrespective of the objections of the other . The board' s jurisdiction thus does not depend upon the parties' agreement .
8 The same provision of the aforementioned law governs the composition of the board and in particular the number of members who must be appointed by the parties and the way in which the umpire must be appointed in the absence of agreement between them . The composition of the industrial arbitration board is thus not within the parties' discretion .
12 In that respect it must first be borne in mind that in its judgment of 30 June 1988 in Case 318/86 Commission v France (( 1988 )) ECR 3559, paragraph 27, the Court condemned a system of recruitment, characterized by a lack of transparency, as being contrary to the principle of equal access to employment on the ground that the lack of transparency prevented any form of supervision by the national courts .
13 It should next be pointed out that in a situation where a system of individual pay supplements which is completely lacking in transparency is at issue, female employees can establish differences only so far as average pay is concerned . They would be deprived of any effective means of enforcing the principle of equal pay before the national courts if the effect of adducing such evidence was not to impose upon the employer the burden of proving that his practice in the matter of wages is not in fact discriminatory .
16 In those circumstances the answers to Questions 1 ( a ) and 3 ( a ) must be that the Equal Pay Directive must be interpreted as meaning that where an undertaking applies a system of pay which is totally 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 .
The lawfulness of the contested criteria relating to supplements in question ( Questions 1 ( b ) and 2 ( a ) and ( c ) )
22 In its judgment of 13 May 1986 in Case 170/84 Bilka v Weber von Hartz (( 1986 )) ECR 1607, the Court took the view that an undertaking' s policy of generally paying full-time employees more than part-time employees who were excluded from the undertaking' s pension scheme, could affect far more women than men in view of the difficulties which women encountered in working full-time . It nevertheless held that the undertaking might show that its wages practice was based on objectively justified factors unrelated to any discrimination on grounds of sex and if the undertaking did so there was no infringement of Article 119 of the Treaty . Those considerations also apply in the case of a wages practice which specially remunerates the employee' s adaptability to variable hours and varying places of work . The employer may therefore justify the remuneration of such adaptability by showing it is of importance for the performance of specific tasks entrusted to the employee .
23 In the second place, as regards the criterion of training, it is not be excluded that it may work to the disadvantage of women in so far as they have had less opportunity than men for training or have taken less advantage of such opportunity . Nevertheless, in view of the considerations set out in the aforementioned judgment of 13 May 1986 the employer may justify remuneration of special training by showing that it is of importance for the performance of specific tasks entrusted to the employee .