The principle of equal pay for work of equal value is regulated in our legal system in article 28 of the Revised Text of the Workers’ Statute Law, approved by Royal Legislative Decree 2/2015, of 23 October. This regulatory text was amended by 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.
Article 28 of the Workers’ Statute defines in paragraph 1 what is understood by work of equal value when it provides that one job is of equal value to another when the nature of the functions or tasks effectively entrusted, the educational, professional or training conditions required for their exercise, the factors strictly related to their fulfilment and the working conditions in which these activities are actually carried out are equivalent.
The remuneration register, according to the European Commission Recommendation of 7 March 2014, allows workers’ legal representatives to have access to disaggregated and averaged remuneration information in companies with at least fifty employees.
This same Commission Recommendation also establishes wage audits in companies with at least 250 workers, although Spanish legislation applies to all companies that are obliged to have equality plans, according to the transitional periods established in Royal Decree-Law 6/2019.
To address the implementation of equality plans and pay registers, Royal Decree 901/2020, of 13 October, regulating equality plans and their registration and amending Royal Decree 713/2010, of 28 May, on the registration and deposit of collective bargaining agreements and collective labour agreements, and Royal Decree 902/2020, of 13 October (same date), on equal pay for men and women, were published in 2020.
The equality plan should already be implemented on a compulsory basis for companies with more than 250 workers, and in 2020, 2021 and 2022 it will gradually be made compulsory for public and private companies with fewer workers:
- Companies with more than 150 employees are obliged to have the Equality Plan approved by 7 March 2020.
- Companies with more than 100 employees are obliged to have the Equality Plan approved by 7 March 2021.
- Companies with between 50 and 100 employees are obliged to have the Equality Plan approved by 7 March 2022.
In addition to this obligation of progressive implementation of the Equality Plans, negotiation, preparation and registration, the Agreement for effective equality between women and men of 30 July 2020 established the obligation for companies with more than 50 workers to have a pay register to detect the overvaluation or undervaluation of each job according to gender. To this end, the Equality Plan will include a pay audit and a correction plan to mitigate such differences and ensure that they are corrected. Equality plans, including prior diagnoses, must be subject to negotiation with the legal representation of workers (Article 5 of Royal Decree 901/2020).
Companies and organisations have found themselves in these two years with new documentary and registration obligations and have had to begin to adapt to the Equality Plans, Audits and Remuneration Registers. Companies must constitute, draw up, keep and register these obligations, a starting point for the correction of inequalities, and therefore, for the verification of their compliance by the Labour Inspectorate, who will require companies to provide the documentation and justification of their effective implementation. The documentation will also be accessible to workers, who will have the right to consult the wage register through the works councils or trade union delegates.
Article 7 of Royal Decree 901/2020, of 13 October, which regulates equality plans and their registration and modifies Royal Decree 713/2010, of 28 May, on the registration and deposit of collective bargaining agreements and collective labour agreements, determines what must be contained in the diagnosis prior to the drafting of the Equality Plan:
- Selection and recruitment process.
- Professional classification.
- Training
- Professional promotion.
- Working conditions, including the salary audit between men and women in accordance with the provisions of Royal Decree 902/2020, of 13 October, on equal pay for men and women.
- Co-responsible exercise of personal, family and working life rights.
- Under-representation of women.
- Prevention of sexual and gender-based harassment.
In accordance with the analysis provided for in the previous paragraph, Article 8 of the same Royal Decree establishes the minimum content that this Equality Plan must have, whether voluntary or compulsory, and always aimed at achieving equal treatment and opportunities between women and men, and eliminating discrimination on grounds of sex. This minimum content can be summarised as follows:
- Determination of the parties to the agreement.
- Personal, territorial and temporal scope.
- Report on the diagnosis of the situation of the company, or of each of the companies in the group.
- Results of the remuneration audit, as well as its validity and periodicity in the terms established in Royal Decree 902/2020, of 13 October, on equal pay for men and women.
- Definition of qualitative and quantitative objectives of the Equality Plan.
- Description of specific measures, implementation period and their prioritisation, as well as the design of indicators to determine the evolution of each measure.
- Identification of the means and resources, both material and human, necessary for the implementation, monitoring and evaluation of each of the measures and objectives.
- Calendar of actions for the implementation, monitoring and evaluation of the measures of the Equality Plan.
- Monitoring, evaluation and periodic review system.
- Composition and functioning of the committee or joint body responsible for the monitoring, evaluation and periodic review of the Equality Plans.
- Modification procedure, including the procedure for resolving possible discrepancies that may arise in the application, monitoring, evaluation or review, as long as the legal or conventional regulations do not require their adaptation.
The equality plan must be compulsorily registered in a public register. For these purposes, the register of agreements and conventions regulated in RD 713/2010 is considered, unless there is a specific register in the Autonomous Community.
This regulatory development of Organic Law 3/2007, of 22 March, for effective equality between men and women, and 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, has led to the obligation, in application of the principle of transparency in remuneration matters, to consolidate as a management element in companies a Remuneration Register in companies with up to fifty workers, and a labour audit in companies with more than fifty workers.
Therefore, the Remuneration Register becomes a mandatory document for all companies, regardless of their size, as opposed to audits and equality plans. This Register must contain the average values of workers’ salaries, including salary and non-wage supplements, disaggregated by sex and distributed by professional groups, professional categories or jobs of equal or equal value. If the percentage difference in pay for women and men exceeds 25%, the reason(s) must be justified.
Therefore, in accordance with the provisions of article 28.2 of Royal Legislative Decree 2/2015, of 23 October, approving the Revised Text of the Workers’ Statute Law, companies must have a remuneration register for their entire workforce, including management personnel and senior managers, in order to ensure transparency in the configuration of remuneration, in a faithful and updated manner, and adequate access to the companies’ remuneration information, through the documented preparation of the averaged and broken down data.
The Remuneration Register shall include the average values of salaries, salary supplements and non-wage payments of the workforce broken down by sex and distributed in accordance with the provisions of the aforementioned article 28.2 of the Workers’ Statute, i.e. by professional groups, professional categories or jobs of equal or equal value.
For this purpose, Article 5 of Royal Decree 902/2020, of 13 October, on equal pay for men and women, provides that the arithmetic mean and median of what is actually received for each of these concepts in each professional group, professional category, level, post or any other applicable classification system must be established in the Remuneration Register of each company, suitably broken down by sex. This information must be disaggregated according to the nature of the remuneration, including basic salary, each of the allowances and each of the non-wage payments, specifying each payment separately.
By virtue of the implementing regulations contained in these paragraphs, companies and organisations, regardless of their size, in contrast to the obligations regarding Equality Plans, must have a Remuneration Register containing at least the information contained in the aforementioned regulations.
This register must be updated annually or when there are significant changes in the company’s remuneration structure.
Although the Autonomous Communities of Catalonia and Andalusia have published a model register, there is insufficient regulatory development to determine how to carry out the diagnosis, its contents, as well as how to develop the salary audits or the configuration and register of the Equality Plan. It is the professionals in the social and labour management of the companies, belonging to or external to the company, who, in accordance with the existing regulations, have developed the protocols of negotiation, elaboration, management, registration and revision of the same, with a double objective:
- Implementation, monitoring and control of equal pay in companies.
- Avoiding the commission of infringements and the imposition of sanctions that can range from serious misconduct, with fines of 626 to 6,250 Euros, to very serious misconduct, ranging from 6,251 Euros to 187,515 Euros.
The European Commission presented on 5 March 2020 its strategy for equality between men and women in Europe, the Strategy for Gender Equality 2020-2025, whereby one of the political priorities for the Commission will be the introduction of binding pay transparency measures. This was announced by Commission President Ursula von der Leyen, who committed herself to the development and monitoring of concrete measures to increase pay transparency.
More information:
Lupicinio International Law Firm
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28001 Madrid
T: +34 91 436 00 90
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