Extent of Protection
Three key measures offer protection:
- Organic Act 3/2007 of 22 March, for the effective equality between women and men;
- Royal Decree-Law 6/2019 of 1 March, on urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation; and
- Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006, on the application of the principle of equal opportunities and equal treatment for men and women in matters of employment and occupation.
The Organic Act 3/2007 establishes the principle of equal treatment and opportunities for men and women. The central, regional and local governments will actively mainstream this principle in the adoption and implementation of their legislative provisions. Moreover, from time to time, the State Government will approve a Strategic Plan for Equal Opportunities covering all areas of its competence, which will include measures to attain the objective of equality between women and men and eliminate discrimination on the grounds of gender. Additionally, article 11 of the Organic Act regulates affirmative actions, stating that in order to ensure the effectiveness of the constitutional right to equality, public authorities will adopt specific measures favouring women to correct situations of obvious inequality with respect to men. Such measures, which will be applicable while the situation exists, must be reasonable and proportional to the objective pursued in each case. Furthermore, equality plans are regulated under Chapter III of the Organic Act. These regulations establish that corporate equality plans comprise a set of measures adopted after a diagnosis of the situation and shall be designed to attain equal treatment and opportunities for women and men within said company. Equality plans will stipulate the specific equality objectives to be reached, the strategies and practices to be adopted to attain them, and the establishment of effective monitoring and assessment systems.
Employees can change equal pay practices through their participation in the application and elaboration of equality plans. The application and elaboration of equality plans is compulsory for companies with over 250 employees, when mandated in the collective bargaining agreement and when the labour authorities agree to substitute the formulation and implementation of such a plan for accessory penalties, resulting from penalty proceedings. Royal Decree-Law 6/2019 modifies the Organic Act and requires companies with 50 or more workers to draft equality plans and mandates that such plans shall be registered accordingly. Application of this obligation shall be gradual and systematic. Enterprises must have an equality plan in place as of:
- 7 March 2020 for companies with more than 150 to 250 workers;
- 7 March 2021 for companies with more than 100 to 150 workers; and
- 7 March 2022 for companies with 50 to 100 workers.
If an employee believes that the company did not adhere to an equal pay practice, he is entitled to initiate an internal demand (within the company) for the protection of his labour rights. However, if the company does not have an internal procedure for this type of claim, a demand can be filed with the courts or the relevant labour inspection authority in order to guarantee the equal pay provisions.
Examples of remuneration discrimination can be found in case law related to the existence of a double salary scale. Specifically, the Supreme Court’s ruling of 5 March 2019, held that the company’s salary structure comprised an unlawful double pay scale based on a personal complement of seniority, which led to a policy to establish wage differences between workers as a result of their entry date into the company, exclusively. Likewise, the discrimination in remuneration is also manifested in the classification and professional promotion of employees. For example, there was a case involving temporary female workers who were assigned a lower professional category upon agreement of a fixed-term contract, than the professional category that was assigned to temporary male workers. However, the leading case law relating to discrimination is the judgment rendered on 1 July 1991, involving discrimination in remuneration established in the CBA between the professional category of labourer (mostly men) and the professional category of cleaners (mostly women), when both professional categories carried out manual work of equal value at the Gregorio Marañón Hospital.
International law, European Union law and Spanish national law, have recognised and protected the right of women and men to receive equal pay for work of equal value. At the national level, the Royal Decree-Law 6/2019 of 1 March, introduced several modifications in the Workers’ Statute, specifically in relation to the term ‘work of equal value’ mentioned in article 28 of said law. Prior to its modification, it only established that the employer was obliged to pay the same remuneration for the provision of work of equal value. After the modification made by the Royal Decree-Law 6/2019, a second paragraph was introduced specifying what is understood as ‘work of equal value’ –
“A work will have the same value as another when the nature of the functions or tasks actually entrusted, the educational, professional or training conditions required for their exercise, the factors strictly related to their performance and the working conditions in which those activities are carried out are in fact equivalent.”
Royal Decree-Law 6/2019 adds a second and a third paragraph to article 28. The second paragraph establishes the obligation of the employer to maintain a Salary Record. This record must be carried out regardless of the number of workers and it must include the average values of salaries, salary supplements and extra-salary perceptions, such values being separate by gender and distributed by professional groups, professional categories and equal job posts or job posts of equal value. The purpose of this record is to obtain a global vision of the remuneration received by workers, according to their gender and for performing work of “equal value”. Such records will be available to employees who have the right of access through their legal representatives.
Furthermore, the new third paragraph of article 28 provides that, in companies with at least 50 workers, when the average of the remuneration of one gender is higher than the other by 25% or more considering the total payroll or the average of the paid perceptions, the employer has the obligation to include in the aforementioned salary record, a justification to prove that the difference does not correspond to reasons related to the gender of the workers. In this sense, Royal Decree-Law 6/2019 further added a new section 3 to article 9, which provides that, in the event of invalidity due to wage discrimination on grounds of gender, the worker will have the right to the remuneration corresponding to equal work or work of equal value.