Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 100) sur l'égalité de rémunération, 1951 - Espagne (Ratification: 1967)

Autre commentaire sur C100

Observation

Demande directe

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The Committee notes the observations of the Trade Union Confederation of Workers’ Commissions (CCOO), of the General Union of Workers (UGT) and of the Spanish Confederation of Employers’ Organizations (CEOE), communicated with the Government’s report. The Committee also notes the Government’s corresponding response.

Article 1(b) of the Convention. Equal remuneration for work of equal value. Legislation. The Committee notes with interest the information in the Government’s report regarding the adoption of Royal Decree-law No. 6/2019 of 1 March, on urgent measures to ensure equality of treatment between women and men in employment and occupation, which amends section 28 of the Workers’ Statute, establishing that there is work of equal value “when the nature of the functions or tasks actually performed, the educational, occupational or training conditions required to undertake them, the factors strictly related to their performance and the terms and conditions of employment under which they are carried out are effectively equivalent”. The Committee also observes, according to the Government’s report, that section 4 of Royal Decree No. 902/2020 of 13 October, on equal pay for women and men, develops this concept and defines the meaning of “nature of the functions or tasks”, “educational conditions”, “occupational and training conditions” and “terms and conditions of employment” and “factors strictly related to the performance of the work”. The Committee requests the Government to provide information on the application in practice of the concept of “work of equal value” defined in section 28 of the Workers’ Statute, as amended by Royal Decree-law No. 6/2019 and Royal Decree No. 902/2020.

Articles 1 and 2. Measures to address the gender wage gap and promote equal remuneration. Instruments for transparency in remuneration. Developments in legislation. In its previous comments, the Committee asked the Government to continue its efforts to reduce the gender wage gap, in collaboration with employers’ and workers’ organizations, and to monitor the impact of the measures adopted. The Committee notes with interest that the Government indicates the adoption, under Royal Decree-law No. 6/2019, of various measures for transparency in remuneration. Firstly, the Committee notes the obligation, under section 28 of the Workers’ Statute, for any enterprise to maintain a record of wages to which the workers’ representatives have right of access. In accordance with Royal Decree No. 902/2020, the record shall contain the average amounts of the wages, supplementary allowances and benefits of the staff (including management and senior management) disaggregated by sex, the arithmetic average and the median of what is actually received for each of those segments in each occupational group, category, level, post or any other classification system. In this connection, the Committee notes the Government’s indication with regard to the guidance material produced by the Institute of Women (IMs) and the creation of a wage record tool, following an agreement reached in collaboration with the employers’ and workers’ organizations in 2021, to help enterprises create their wage records, as well as the CEOE’s observations, according to which this tool will allow comparison between and grouping of reduced-time or part-time posts. The Committee also takes note of the Government’s clarification, in response to the CEOE observations, that the wage record tool does not replace the self-diagnosis tool for the gender wage gap (created in 2016), which is still active and allows objective and gender-sensitive measurement of wages.

The Government also indicates that enterprises of more than 50 workers are now obliged to adopt and register an equality plan. In this regard, the Committee refers to its comments formulated in respect of the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and notes that the prior negotiated analysis to elaborate the equality plan must take occupational classification systems, remuneration, the under-representation of women, and a pay audit into consideration. Moreover, under Royal Decree No. 902/2020, the pay audit shall include an analysis of the remuneration situation of the enterprise, including an evaluation of the work posts and factors resulting in the wage gap, as well as a corrective action plan. The Committee notes, in addition to the observations of the CCOO, that the Government reports that a technical guide will be elaborated, in collaboration with the social partners, on conducting pay audits that include a gender perspective. The Committee also notes that the UGT states, in its observations, that violations of non-compliance with these new measures should be more precise, and more heavily penalized, with both absence of information and the provision of incorrect information on wages specifically classified as very serious offences in application of Royal Decree No. 902/2020. The Government maintains that appropriate offences are provided for in this regard, as comprehensive wording, covering all non-compliance with the law, has been included, adding that a general increase in the amounts of the penalties will come into force in 2021. The Committee requests the Government to provide information on the implementation, in practice, of the instruments for transparency in respect of remuneration, as well as any difficulties encountered in applying these tools, and the results obtained through their application, and in particular: (i) information on good practices identified through the wage records and pay audits; (ii) information on the number of violations identified in respect of the obligations regarding the wage records and the pay audit; and (iii) information on the assistance and guidance activities carried out to implement the instruments for transparency in respect of remuneration, indicating the numbers of beneficiaries.

Public sector. The Committee notes the UGT’s indication that Royal Decree No. 901/2020 and Royal Decree No. 902/2020 do not apply to civil servants in public administration, pointing out that there is no obligation to maintain records of wages, carry out pay audits and register formulated equality plans. In this regard, the Government clarifies that the amendments to Royal Decree-law No. 6/2019 (and consequently, Royal Decrees Nos. 901/2020 and 902/2020) refer to sections 45 and 46 of Basic Act No. 3/2007, of 22 March, on effective equality for women and men, which concern obligations for enterprises. However, the Government indicates that section 64 of that Act sets out the obligation to establish an equality plan with regard to the General State Administration (AGE), and that the III Plan for Gender Equality in the AGE and in connected or dependent public bodies was adopted in 2020. The Committee notes that Part 3 of the Plan refers to terms and conditions of employment and career development, and provides measures for equal remuneration for women and men, including the analysis of the gender wage gap in the AGE and the development of a plan of action to eliminate the gap through methodologies that take Royal Decree No. 902/2020 as a model. In its 2012 General Survey on fundamental Conventions, paragraphs 670 and 671, the Committee indicates that Member States bound by the Convention cannot be passive in their approach to implementing the Convention and are obliged to ensure the application of the principle where the State is the employer or otherwise controls business, or where the State is in a position to intervene in the wage-fixing process. The Committee requests the Government to provide detailed information on the measures adopted to apply the principle of the Convention in the different areas of public administration, including measures adopted under the AGE III Plan for Gender Equality 2020, specifying the concept of “work of equal value”, the mechanisms employed and results obtained.

Measures to address the underlying causes of the gender wage gap. In its earlier comments, the Committee requested the Government to continue providing information on all measures adopted to address the underlying causes of the wage gap and to provide statistical information disaggregated by sex on the participation of men and women in the labour market, in education and vocational training. With regard to occupational segregation, the Committee notes the information provided by the Government to the effect that there are sectors with a higher participation of women workers (office and administration, catering, protection, retail and personal services, and domestic work), sectors with a higher participation of men workers (industry and construction, the military), and sectors in which a slow increase in women’s participation can be observed (technical, scientific and intellectual occupations, leadership and management positions). The Committee also observes, according to the statistics provided by the Government, that women’s wages represent 88.55 per cent of men’s wages in the services sector; 84 per cent in technical, scientific and intellectual occupations; 80.3 per cent in office work involving contact with the public; 83.8 per cent in office work not involving contact with the public; and 82.52 per cent in the restaurant and retail sector. The Committee also notes that the CCOO indicates that despite the 2019 Wage Structure Survey showing a reduction in the wage gap, the economic gender gap continues to grow, as the reduction referred to is due largely to the increase in the minimum interprofessional wage, and women form the majority of those receiving the lowest wages. The CCOO also mentions that the sectors employing most women, such as hotels and services, present the lowest annual wages. In this regard, the Committee notes that, under Royal Decree-law No. 6/2019 and Royal Decree No. 901/2020, the prior negotiated analysis for the equality plans must take the distribution of staff, vertical and horizontal segregation into consideration, while the equality plan’s statistics sheet should answer questions on ways to address such segregation, the objective of equal participation at all levels of the enterprise, the implementation of systems to promote occupational goals, prioritizing women’s access to work primarily performed by men and promoting women’s presence in management and leadership positions. The Government also refers to Act No. 11/2018, of 28 December, amending the Commercial Code, the consolidated text of the Corporate Enterprises Act approved by Royal Legislative Decree No. 1/2010, of 2 July, and Act No. 22/2015, of 20 July, on accounts auditing in respect of non-financial information and diversity, under which executive boards of enterprises must ensure that their membership selection processes facilitate a balanced participation of women and men. The Committee also takes note of various elements of information provided by the government on training and awareness-raising measures, including the “Proyecto Progresa” project, launched in 2019 with the CEOE, to promote women with talent in organizations including, for example: (1) the initiation in 2018 of workshops on identifying and evaluating unconscious gender bias, as part of the “More Women, Better Enterprises” project; (2) the TALENTIA 360 programme, which aims at empowering women to take management positions and, since 2018, includes action specifically concerning the armed forces; (3) programmes to promote women and girls in science, technology, engineering and mathematics (STEM), such as “I want to be an engineer 2018-2020” (“Quiero ser ingeniera”), “Now you – 2018–2020” (“Ahora tú”) and INNOVATIA 8.3; and (4) the Guide of good practices for attracting and retaining talent and career progression with a gender perspective 2020.

Regarding the modalities and systems of working time and social protection, the Committee observes from the statistics provided by the Government, that women represent 74 per cent of part-time workers and only 41 per cent of full-time workers ant that, according to the CCOO, the average wage for full-time work is 16.58 euros per hour, while for part-time work it is 11.71 euros per hour. The Committee notes the Government’s indication that Royal Decree No. 902/2020 applies to workers in part-time work, and that Royal Decree No. 28/2020, of 22 September, on remote work, provides for remote workers’ entitlement to the same remuneration and wage supplements as on-site workers for work of equal value. The Government also refers to the decision of the Constitutional Court of 3 July 2019, ruling that any additional reduction to the regulatory base applied to part-time workers, resulting in a reduction in the effective number of days contributed, is unconstitutional, since it would predominantly affect women workers and constitute indirect discrimination. The Committee also notes that the Government refers to the amendment of the Basic Statute of Public Employment, enacted under Royal Decree-law No. 6/2019, which grants civil servants the right to retain their entire remuneration if their working day is reduced due to violence, and also to the Agreement of the Sectoral Conference of the Public Administration of 22 October 2018 to promote inter-administrative mobility for public servants that are victims of gender-based violence, which provides that the woman worker requesting such mobility does not incur a loss of remuneration. Lastly, the Committee also refers to its comments formulated in respect of the Workers with Family Responsibilities Convention, 1981 (No. 156), concerning the adoption of the supplement introduced to reduce the gender wage gap in pensions. The Committee requests the Government to provide information on progress made in addressing vertical and horizontal occupational segregation on the grounds of gender, and to continue providing information disaggregated by sex, sector, occupation and form of work on the participation of men and women in the labour market. The Committee also requests the Government to provide information on the measures adopted to facilitate women’s access to full-time work for those women who so wish, and for the application, in practice, of the principle of equal remuneration for women workers in part-time or remote work.

Article 3. Objective job evaluation. The Committee observes that the remuneration audit required under Royal Decree-law No. 6/2019 and Royal Decree No. 902/2020 in enterprises of over 50 women workers must include an analysis with a pay audit that comprises a job evaluation. The Committee takes note that, according to section 4 of the same Royal Decree, a correct evaluation of jobs requires the application of suitability criteria (relevant factors are those related to and actually performed in the activity), completeness (account must be taken of all the conditions that individualize the job, ignoring and undervaluing none), and objectivity (existence of clear mechanisms to identify the factors taken into consideration when fixing wages, which are not influenced by social factors or values that reflect gender stereotypes). Thus, the Government indicates that the Gender-sensitive System for Evaluation of Jobs (SVPT), which enabled enterprises to create their own system of job evaluation, will be replaced under the first final provision of Royal Decree No. 902/2020, by a new evaluation procedure, which should be adopted within six months of the entry into force of the Decree. The Committee also observes that Royal Decree-law No. 6/2019 amends section 22.3 of the Workers’ Statute, requiring that classification systems in collective agreements and the definition of professional groups comply with criteria and systems that aim to eliminate gender discrimination. Royal Decree No. 902/2020 provides that collective agreement negotiations shall ensure that the factors and conditions of each occupational group and level respect the criteria of suitability, completeness and objectivity. The Committee requests the Government to provide information on progress in adopting the new job evaluation procedure. The Committee also requests the Government to provide information on collective agreements that include systems to classify and define occupational groups, in compliance with Royal Decree-law No. 6/2019.

Enforcement. Labour inspection. In its previous comments, the Committee requested the Government to provide information on the measures adopted and the investigations carried out by the Labour Inspectorate, and on specific measures undertaken to improve enforcement of national laws related to the Convention. The Committee observes that the Government refers to certain measures provided under the Decent Work Strategy 2018–2019–2020 for the labour inspectorate, including the use of database cross referencing, by means of the Anti-Fraud Tool, with a view to detecting occurrences of wage discrimination. In this regard, the Committee notes the Government’s indication that as a result of the use of this tool, action taken under the inspection campaign on wage discrimination on grounds of sex increased in 2019 and 2020. The Committee thus observes that 980 inspections were conducted, with 24 violations detected in 2019, and 830 inspections were conducted, with 26 violations detected in 2020. The Committee notes that the Government provides data on action by the labour inspectorate undertaken as part of its general activities, although these do not disaggregate cases specifically concerning wage discrimination. The Committee further notes that the Government provides information on various court rulings concerning the application of the principle of the Convention. In respect of this aspect of inspection activity, the Committee also refers to its comments formulated regarding the application of the Convention on Discrimination (Employment and Occupation), 1958 (No. 111). The Committee requests the Government to continue providing information on the measures adopted and the investigations conducted by the labour inspectorate, both within the framework of specific campaigns and in the course of their general activities, and on all legal or administrative rulings related to cases of wage discrimination on the grounds of sex, as well as the penalties imposed and compensation granted.