05. Pay Equity Laws

Extent of Protection

Enacted in 2009, the Equal Pay Law (No. 20.348) establishes that companies shall comply with the principle of equal remuneration between men and women performing the same work, and objective differences in remuneration based on, among other reasons, capabilities, qualifications, suitability, responsibility or productivity, shall not be considered arbitrary. The principle of equal remuneration between men and women performing the same work or the same job is neither recognised nor respected when involving acts that imply a substantial difference in the remuneration of the personnel, adopted on the basis of the sex of the worker, such as: lower salaries for women performing the same work as male employees and lower values in the bonuses, incentives, deals or commissions that are agreed upon. Notwithstanding the above, and in accordance with the provisions of current legislation, differentiated remuneration may be agreed upon between one or more employees, in the event that any of the following situations arise:

• differences in the individual capacities of the employees;
• differences in the qualifications or objective evaluations of the personnel taken or performed by the company, based on, among other aspects, the fulfillment of objectives, the employee’s productivity, attendance and punctuality;
• suitability for the position (e.g., those individuals who meet the necessary or optimal conditions for a given function or work);
• different levels of responsibility within the company’s organisation, which will be expressly stated in the respective employment contracts;
• difference in the employee’s productivity.

Remedies

Any employee who considers that he/she has been or continues to be affected by events that threaten the equality of remuneration between men and women, has the right to petition, in writing, the head office, or the management, or the respective personnel unit directly, demanding equal remuneration (in accordance with Art. 62 bis of the Labour Code and Art. 1 No. 1 Law No. 20.348).

Enforcement/Litigation

In the event that wage discrimination is verified, not only will it result in a fine from the administrative authority, but also the judge presiding over the court proceedings will be able to take all measures necessary to correct any such irregularities. In reality and with respect to the procedure of the complaint, if the employee seeks relief from the Labour Department, an attorney will take over the case and pursue mediation. If this course of action fails to achieve a result, the case for labour protection will pass to the Labour Courts. Additionally, the employee is entitled to go directly to court.

Other Requirements

Employers are obliged to include in their internal regulations of order, hygiene and security the provisions and rights set forth in the Equal Pay Law, also adding, in detail, a channel of complaint (within the same company) for employees’ claims in the event that such a wage gap is determined to be discriminatory in nature.