Wage transparency and gender equality, proposed EU directive
Precocious puberty, cases doubled in 2020. The Italian study
April 23, 2021
Monoclonal antibodies for the treatment of migraine, conference by the Turin Academy of Medicine
8 May 2021
The European Commission - as part of the 2020-2025 Gender Equality Strategy, approved by the European Parliament on 21.1.21 (1) - has adopted a proposal for a directive aimed at guaranteeing wage transparency and the same pay for identical jobs.
The Commission's scheme is now subjected to political scrutiny by the European Parliament and the Council. Once the three institutions have reached an agreement and the directive has entered into force, the Member States will have two years to transpose it into national law. Following are the criteria and concepts introduced in the proposed directive, the legal context and the current situation, the gaps that are identified.
CRITERIA
Salary transparency
Pay transparency in job offers. Employers will need to provide information on the starting salary level directly in the job posting, or in any case, before the interview with the candidate. Furthermore, they will not be authorized to ask for information on previously received salaries.
Right to information of employees. Workers will have the right to ask their employer for information regarding their individual wage level and average wage levels, broken down by gender and by categories of workers doing the same or work of equal value.
Gender pay gap, annual reports and discussions with trade unions
The only employers with at least 250 employees should provide public information on any pay gap between female and male employees who belong to the same category of workers and perform the same duties or work of equal value.
Comparisons with employee representatives for a joint pay assessment would only be envisaged if the pay report reveals a gender pay gap> 5% and the employer is unable to justify this gap on the basis of objective and neutral factors.
Legal protection for victims of pay discrimination
Compensation for workers who have suffered gender pay discrimination should have retroactive effect. That is to say that the full recovery of the arrears and premiums not received should be added to the compensation.
The burden of proof always falls on the employer, who is required to demonstrate any justification for different wages. In line with the prevailing jurisprudence of the Court of Justice (Danfoss case. C-109/88, Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening). (2)
Sanctions and protective actions
Sanctions and compensation. Member States will have to introduce specific sanctions and minimum levels of compensation - for violations of the rules on equal pay - which will have to be effective, proportionate and dissuasive. Taking into account the gravity and duration of the infringement, willful misconduct or negligence of the employer and any other circumstance.
Equality bodies (See infra) and the workers' representatives will be able to act in the name and on behalf of individual discriminated workers, both in judicial or administrative proceedings, as well as conduct collective actions on equal pay.
NOTIONS
'Work of equal value'
The concept of 'work of equal value' expressed in the proposed directive presupposes a gender-neutral assessment of the employment position. That is, pay differences are admitted as non-discriminatory and based on a number of objective criteria.
One has regard to education, professional and training requirements, skills, commitment, responsibility, work performed and the nature of the tasks to be performed. Thus the EU Court of Justice in cases C-400/93 (RoyalCopenhagen), C-309/97, (Angestelltenbetriebsrat der Wiener Gebietskrankenkasse. See note 3), C-381/99 (Brunnhofer), C-427/11 (Margaret Kenny et al. vs. Minister for Justice, Equality and Law Reform et al. See note 4).
'Salary'
The 'pay' is understood in a very broad sense, which includes not only the basic economic remuneration but also complementary aspects such as bonuses, allowance for overtime, transport services, housing allowance, allowance for participation in training courses, severance pay, increases for overtime, statutory sickness benefits, statutory indemnities and company or occupational pensions.
'Public, private and NGO employers'
The scope of the directive should be extended to employers in the public and private sectors as well as to NGOs (non-governmental organizations, Third Sector Entities in Italy), if they act as employers.
'Workers included in the scope'
The it should apply to all workers, including part-time and / or temporary workers as well as those who have a contract or employment relationship with a temporary agency.
Workers, on-call workers, intermittent workers, a voucher, digital platform workers and domestic workers must be included in the scope of the directive. Trainees and apprentices receive protection if they meet the criteria for worker status established by the European Court of Justice (Case C-66/85 Lawrie-Blum; and more recently case C-216/15 Ruhrland Clinic). (5)
'Equality bodies'
Equality bodies - competent in the fight against discrimination and for gender equality - should be able to act not only in support of the victims but also on their behalf, for the protection of collective interests, in any judicial and administrative procedure. (6)
LEGAL BACKGROUND
Gender equality is one of the fundamental principles of the EU, crystallized in the Charter of Fundamental Rights (art. 23) as well as in the Treaty (TEU, art. 2.3) and in the Treaty on the Functioning of the European Union (TFEU. Art. 8, art. 157.1) .
'Each Member State ensures the application of the principle of equal pay between male and female workers for the same work or for work of equal value (…) '. (TFEU, art. 157.1)
Starting from the 70s last century, when the first directives in this field were introduced, the EU produced extensive legislation on gender equality. (7) Especially in the area of employment, with provisions on equal pay, social security, employment, working conditions and harassment (Directive 2006/54 / EC. See note 8), self-employment (Directive 2010/41 / EU . See note 9), rights to parental and maternity leave (directives 92/85 / EEC and 2010/18 / EU. See notes 10,11).
SITUATION IN ACT
Gender pay gap in the European Union
The principle of equal pay, with all due respect to the legal context mentioned above, it is still applied only in part. The gender pay gap (gender pay gap) in the European Union is in fact estimated at 14,1%. (Eurostat, 2019 data), compared to 20% globally.
The difference between wages determines long-term repercussions on the quality of life of women, inevitably exposing them to a higher risk of poverty and social exclusion. In addition to widening the pension pay gap (gender pension gap) which in the EU is even 29% (Eurostat, 2019 data).
Gender pay gap in Italy
Il Global Gender Gap Report 2020 reports that Italy has dropped from 70th to 76th place worldwide in the ranking of countries that implement wage parity. (12)
If we consider the average annual salaries, the differences in pay between men and women in Italy are still very high.
In Italy a culture of transparency on issues related to salaries is still lacking. To the point that, to date, there are no updated data regarding the gender pay gap. Available data indicate a pay gap of 20,7% in the private sector, 4,1% in the public sector (2017 data).
COVID-19 and women's work
The pandemic it has hit working women hard, as following the closure of schools and support services, a series of care responsibilities have fallen on them towards children and family members in difficulty, with serious damage to their conditions and job opportunities . The crisis has therefore revealed a fallacious system, where the fundamental rights to equal pay and equal opportunities in the world of work remain a utopia.
The lack of pay transparency is one of the main obstacles to full wage integration, as:
- workers do not have the basic information necessary for an objective comparison between wages on 'work of equal value',
- employers, in turn, have no incentive to re-examine the pay system. And they persist in maintaining discriminatory wage policies.
GAPS
The proposed directive it refers only to companies with more than 250 employees. This effectively leads to the exclusion of approximately 67% of workers in the EU from its scope. And the consequent exemption of their employers from the obligation to report on the gender pay gap and joint assessment of pay with employee representatives.
The European Confederation of Trade Unions (CES) - where, among others, the Italian trade unions (CGIL, CISL and UIL) participate - should therefore undertake to ensure that the criteria established in the directive find the widest application, regardless of the size of the organizations.
Gender equality in the UN 2030 Agenda
“By achieving gender equality and the empowerment of women and girls, a fundamental contribution will be made to progress in all objectives and milestones. Achieving full human potential and sustainable development is not possible if one half of humanity continues to be deprived of all human rights and opportunities.
Women and girls must have equal access to quality education, financial resources and political participation, as well as equal opportunities with men and boys in employment, leadership and decision-making at all levels. We will work for a significant increase in investment to bridge the gender gap and strengthen support for institutions in relation to gender equality and the empowerment of women globally, regionally and nationally.
All forms of discrimination and violence against women and girls will be eliminated, including through the commitment of men and boys. It is essential to systematically integrate a gender perspective in the implementation of the Agenda ”. (UN Agenda 2030, paragraph 20. See note 13)
Elena Bosani and Dario Dongo
Note
(1) Strategy for gender equality | European Commission (europa.eu)
(2) EUR-Lex - 61988CJ0109 - EN - EUR-Lex (europa.eu)
(3) Court of Justice case C-400/93, Royal Copenhagen; case C-309/97, Angestelltenbetriebsrat der Wiener Gebietskrankenkasse
(4) 62011CJ0427 (europe.eu)
(5) 1_IT_ACT_part1_v4.docx (europa.eu)
(6) Gender pay gap - transparency on pay for men and women (europe.eu)
(7) 4553-a-comparative-analysis-of-gender-equality-law-in-europe-2017-pdf-1-mb
(8) https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:32006L0054&from=EN
(9) Directive 2010/41 / EU of the European Parliament and of the Council of 7 July 2010 on on the application of the principle of equal treatment for self-employed men and women and repealing Council Directive 86/613 / EEC (europe.eu)
(10) EUR-Lex - 31992L0085 - EN (europa.eu)
(11) EUR-Lex - 32010L0018 - EN - EUR-Lex (europa.eu)
(12) Global Gender Gap Report 2020 | World Economic Forum (weforum.org)
(13) https://unric.org/it/agenda-2030/ The 2030 Agenda for Sustainable Development is an action program for people, the planet and prosperity signed in September 2015 by the governments of the 193 UN member countries. It encompasses 17 Sustainable Development Goals - Sustainable Development Goals, SDGs - in a large program of action for a total of 169 'target'or goals.
Attorney at law in Milan and Frankfurt am Main. An expert in family, juvenile and criminal law, she is now enrolled in a university master's degree in food law
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
