Persons who perform seemingly identical tasks but who draw upon knowledge and skills acquired in very different disciplines and who do not have the same qualifications to perform other tasks that may be assigned to them do not do the "same work" for the purposes of Community law
Austrian social insurance institutions may employ three different classes of psychotherapists: doctors who have completed their general practitioners' or specialists' training, graduate psychologists (qualified to practice in the health sector on a self-employed basis) and those who are neither doctors nor psychologists but who have a general education and have undergone specialised training in psychotherapy.
In 1995, under the collective agreements which apply to the various categories of personnel, the basic net remuneration of a graduate psychologist was between ATS 24 796 and ATS 51 996, whereas that of a specialist doctor was between ATS 42 197 and ATS 73 457.
The Angestelltenbetriebsrat der Wiener Gebietskrankenkasse (Staff Committee, Vienna Area Health Fund) applied to the Austrian courts for a declaration that psychotherapists with a degree in psychology working for the Health Fund should be classified in the same category as doctors employed as psychotherapists. It said that its application was justified by the training and duties of psychologists engaged in psychotherapy and pointed out that most of the practitioners receiving the lower salaries were women.
The Vienna Oberlandesgericht referred questions to the Court of Justice on the interpretation of the Community provisions establishing the principle of equal pay for men and women for the "same work".
The Court held first that, although psychologists and doctors employed as psychotherapists by the Health Fund perform seemingly identical activities, in treating their patients they draw upon knowledge and skills acquired in very different disciplines (psychology for the former, medicine for the latter).
Furthermore, even though doctors and psychologists both in fact perform work of psychotherapy, the former are qualified also to perform other tasks in a field not covered by the latter, who may only perform psychotherapy.
In those circumstances, two groups of persons who have received different professional training and who, because of the different scope of the qualifications resulting from that training, on the basis of which they were recruited, are called on to perform different tasks or duties, cannot be regarded as being in a comparable situation. That finding is not contradicted by the fact that a single tariff is charged for psychotherapeutic treatment, an arrangement which may be the result of social policy.
The Court therefore held that the term "the same work" does not apply, for the purposes of the Community provisions, where the same activities are performed over a considerable length of time by persons whose qualifications to exercise their profession are different.
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