The Collective Complaints Procedure the UWE has started at the COE against Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia and Sweden for Equal Pay is well on its way; We received an 8 page letter from the EU. It started with a summary of our complaints and then goes into the background of the treaties and legalities. Interesting to read but most of all, almost all the governments have answered to our questions. The answers are not all ready in English but can be found on the website of COE.int . Well done Anne Nègre.
Complete letter Ares 2739222 University Women of Europe
: advice HR Commission Netherlands
Summary Complaint The University Women of Europe lodged a complaint against fifteen countries that have accepted that the collective complaint is lodged against them. The collective complaint, consisting of fifteen individual complaints, refers to the following topics:
1. Lack of appropriate measures to achieve equal pay for equal work
o absence of gender mainstreaming
o ineffective employment equality policy
o ineffective protection against discrimination
o the measures implemented do not concern small enterprises
o non-requirement to establish classification systems
2. Lack of effectiveness of Equality Ombudsman and Labour Inspectorates
o which (public) authorities are competent to handle complaints?
o which bodies/persons in companies are responsible to handle complaints?
3. Lack of evaluation of gender equality actions, including absence of reliable statistical data
4. Structural deficiencies
5. Gender biased norms and stereotypes
6. Lack of assessment of impact of uptake of parental leave on the pay gap
7. Under-representation of women in decision-making
8. Non-application of certain legislation to management boards.
The University Women of Europe finds the same problems invariably in relation to all countries under examination. Only some details differ, for example when it comes to the availability of statistics on gender pay gap for each particular State. Apart from such details, the University Women of Europe identified the problems of the same nature in all
Ref. Ares(2018)2739222 – 28/05/2018 2
the countries against which the complaint is lodged. The University of Europe concludes that the countries in question are in violation of certain articles of the Social Charter and the subsequent related texts1.
The European Commission has no competence to give an opinion on possible violations of the Council of Europe’s Social Charter. It will therefore limit itself to highlighting the European Union’s legal framework and policy actions of relevance to the matters raised in the complaints.
at the end of the letter
The equal pay issues may raise complex legal questions, as demonstrated by the rich case law before the ECJ on the notion of “pay”, the concept of ‘equal work’ and ‘work of equal value’13.
– For more information, see the report “The enforcement of the principle of equal pay for equal work or work of equal value. A legal analysis of the situation in the EU Member States, Iceland, Liechtenstein and Norway” written by the European network of legal experts in gender equality and non-discrimination; https://www.equalitylaw.eu/downloads/4466-the-enforcement-of-the-principle-of-equal-pay-for-equal-work-or-work-of-equal-value-pdf-840-kb
One of the elements important for assessing the complaints in question is to correctly assess the notion of “pay”14. The CJEU, in particular during the 1990s, has interpreted broadly the scope of the notion of ‘pay’. Pay includes not only basic pay, but also, for example, overtime supplements, special bonuses paid by the employer, travel allowances, compensation for attending training courses and training facilities, termination payments in the case of dismissal and occupational pensions.
Another batch of cases delves into the concepts of ‘equal work’ and ‘work of equal value.15’ In those cases, the potential comparison of jobs is the central problem and judgments focus on finding an accurate comparator. Questions that have arisen in that perspective concern, for example, the possibility to compare with a similar or even the same job with another employer, with previous employees doing the same job and with employees doing a job of lower value. In addition, the use of statistics is an issue that has come to the surface in a number of CJEU cases.
It is also important to emphases that the principle of equal pay for men and women for equal work and work of equal value enshrined in the EU legal provisions and the case law of the CJEU interpreting them, does not guarantee the absence of a gender pay gap. This is because the causes of the gender pay gap are multiple, as explained in the previously mentioned EU Gender Pay Gap Action Plan 2017-2019. These causes include of course pay discrimination, but also sectorial and vertical segregation, stereotypes about whether men and women should be on the labour market or at home and inadequate work-life balances policies. 8
The Commission believes that the information presented in this reply might shed more light on the current situation in the European Union and its Member States as regards different aspects of gender equality and, in particular, pay equality and gender pay gap. The complexity of the issues in question and the numerous elements that, in the end, lead to the gender pay gap can be seen from many different angles, from the sociological to economical and legal. Therefore, it is necessary to take all of these into account.