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Summary of the Judgment
Summary of the Judgment
Judgment of the Court of 17 October 1989.
Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss.
Reference for a preliminary ruling: Faglige Voldgiftsret - Denmark.
Social policy - Equal pay for men and women.
1.Preliminary questions - Reference to the Court - National court or tribunal within the meaning of Article 177 of the Treaty - Definition
( EEC Treaty, Art . 177 )
2.Social policy - Male and female workers - Equal pay - Lack of transparency in undertaking' s system of pay - Average pay for women less than that for men - Burden of proof of non-discrimination - Application of criteria for pay supplement - Conditions
( EEC Treaty, Art . 119; Council Directive 75/117, Arts 1 and 6 )
1.Where the law provides that an industrial arbitration board has jurisdiction in disputes between parties to collective agreements made between employees' and employers' organizations and either party may bring a case before it, so that the jurisdiction does not depend on the agreement between them, and the composition of the board is not within the parties' discretion but is determined by the law, the industrial arbitration board must be regarded as a court or tribunal of a Member State within the meaning of Article 177 of the Treaty .
2.Directive 75/117 on equal pay for men and women 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 .
Where it appears that the application of criteria for pay supplements such as mobility, training or the length of service of the employee systematically works to the disadvantage of female employees, the employer may justify recourse to the criterion of mobility if it is understood as referring to adaptability to variable hours and varying places of work, by showing that such adaptability is of importance for the performance of the specific tasks which are entrusted to the employee, but not if that criterion is understood as covering the quality of the work done by the employee; he may also justify recourse to the criterion of training by showing that such training is of importance for the performance of the specific tasks which are entrusted to the employee; he does not have to provide special justification for recourse to the criterion of length of service, for it goes hand in hand with experience, which generally enables the employee to perform his duties better .