Extent of Protection
Article 157 of the Treaty on the Functioning of the European Union introduced the principle of equal pay between male and female employees for equal work. Translated into Belgian law, CBA no. 25, rendered obligatory by Royal Decree, imposes equal pay for men and women for equal or equivalent work. The text of CBA no. 25 is to be added to the Work Rules of the company.
The Belgian legislature took additional measures in order to fight against the wage gap between men and women. These measures include both the industry level (the CBAs and function classification systems at the industry level must be gender -neutral, which is checked by the Employment Ministry) as well as the company level. In this regard, Belgium adopted an Act on reducing the gender pay gap on 22 April 2012. According to this Act, differences in pay and labour costs between men and women should be outlined in the company’s annual audit (‘social balance’). These annual audits are transmitted to the National Bank in order for it to be publicly available. Moreover, the Act stipulates that every two years, companies with over fifty employees should establish a comparative analysis of the wage structure of female and male employees. If this analysis shows that women earn less than men, the company will be required to produce an action plan. Finally, if discrimination is suspected, women can turn to their company’s mediator.
Remedies
As stated above, if the publication of the social balance or the bi-annual report leads to the suspicion of pay discrimination against women, an internal mediator can be appointed by the employer (at the proposal of the works’ council or, in absence, of the Committee for Prevention and Protection at Work). The mediator will establish whether there is indeed a pay differential and, if so, he will try to find a compromise with the employer.
Next, it is also possible for women who are victims of pay discrimination to file a complaint against their employer, based on the anti-discrimination act relating to gender (see Chapter V). In this case, the Belgian Institute for Equality between Men and Women may assist alleged victims before the courts.
Enforcement/Litigation
According to Statbel, the Belgian unadjusted gender pay gap was 5% in 2021; this is one of the lowest percentages in the EU (EU-average: 12.7%). The unadjusted gender pay gap is defined as the difference between the average gross hourly earnings of men and women, expressed as a percentage of the average gross hourly earnings of men. It is called ’unadjusted’ as it does not take into account all of the factors that influence the gender pay gap, such as differences in education, labour market experience or type of job.
Wage discrimination can remain hidden. For example, sometimes different job titles are systematically used for the jobs of female and male employees and other pay scales are linked to those job titles. Often people do not know exactly how much their colleagues earn. In this way, even blatant differences can go unnoticed. Therefore, discrimination cases regarding a differential remuneration based on gender are quite rare. In a judgment of 6 February 2020, the Labour Court of Appeal of Brussels dismissed a complaint of a female bank employee who claimed that her employer used parallel pay scales, as the employee failed to prove any link to gender.
Other Requirements
Next to the obligation to publish a bi-annual report and the possibility to take positive actions, the Act of 28 July 2011 inserted a quota of at least one third of the less represented sex for all members of the Board of Directors of autonomous public undertakings, listed companies and the National Lottery, which had to be fulfilled before specific deadlines. Failure to comply with these provisions may result in sanctions: nullity of the appointment or suspension of financial benefits. Parliament’s evaluation of the impact of the law on the presence of women on boards of directors, is scheduled for the twelfth year following its entry into force, i.e. 2023.
Finally, after the approval of the EU Pay Transparency Directive in 2023, its future transposition is expected to bring major changes to the legal rules regarding this topic.
