In accordance with Organic Law 3/2007 for equality of women andmen, and Royal Decree Law 6/2019 on urgent measures to ensure equal treatment and opportunity between women and men in employment and occupation, next March 2021 the deadline for companies of more than 100 working persons to have the Equality Plan completed.
Failure to prepare and implement an Equality Plan in the undertaking constitutes a serious infringement punishable by a fine of between EUR 626 and up to EUR 6,250.
As we said, royal decree-law 6/2019 was published in the BOE on 7 March 2019 which contains urgent measures to ensure equal treatment and opportunities in employment and occupation, which have a direct impact on equality between women and men, such as extending the requirement to draft equality plans to enterprises of fifty or more workers.
Business equality plans
In order to establish a new legal framework for full equality,Organic Law 3/2007 of 22 March for the effective equality of womenand men was amended in relation to business equality plans.
Other developments included:
- The threshold for working persons in enterprises who must necessarily develop and implement an equality plan is lowered from more than 250 to 50or more.
- With regard to equality plans, establishes the obligation of a minimum content, after a negotiated diagnosis, where appropriate, with the legal representation of working persons, with an overall reference to “working conditions” expressly including wage audits, as well as the co-responsible exercise of conciliation rights and female underrepresentation, be added to the preceding list.
- An Equality Plan Register will be created, with companies required to register them in that register.
- For all previous measures, a transitional period has been established from 8 March 2019 depending on the number of workers in the undertakings:
- Companies with between 50 and 100 employees must develop and implement an equality plan within three years.
- Companies of more than 100 workers and up to 150 must develop and implement an equality plan within two years.
- Companies of more than 150 workers and up to 250 must develop and implement an equality plan within one year.
- Both the registration of Equality Plans and the diagnosis, content, subjects, wage audits, monitoring systems and evaluation of plans will be developed by regulation.
Equality Plan for Companies of More than 100 Workers
Therefore, and according to what we have just discussed, it is extremely important to note that, since March 2020, companies of more than 150 workers are already required to have an Equality Plan, and that since March 2021 it will be mandatory to companies of more than 100 working people.
Failure to comply with this obligation may result in the imposition of sanctions by the Labour and Social Security Inspection, considering that it is a serious infringement in the field of industrial relations not to comply with the obligations established in the field of equality plans.
Failure to draw up and implement an Equality Plan constitutes a serious, punishable infringement of a fine ranging from EUR 626 to EUR 6,250. On the other hand, where the obligation to carry out the equality plan is at the requirement of the labour authority (Labour Inspection) the legislation considers it to be a very serious fault and, in this case, the penalty could range from EUR 6,251 to EUR 187,515.
In addition, an antic sanctions such as the following may be incurred:
- (a) Automatic loss of aid, bonuses and, in general, benefits arising from the implementation of employment programmes, with effect from the date on which the infringement was committed, and
- b) Automatic exclusion of access to such benefits for six months.
In addition, under the Public Sector Contracts Act,companies that do not have an Equality Plan or fail to comply with it will not be able to contract with the Public Administration.
In the light of all this, it is appropriate not to let your guard down in fulfilling this obligation to develop equality plans which is increasingly affecting and will affect a greater number of companies throughout the national territory.
As set out in the regulations, undertakings must include the following content:
- Selection and recruitment process.
- Professional classification.
- Professional promotion.
- Working conditions, including the women-male wage audit.
- Co-responsible exercise of the rights of personal, family and work life.
- Female underrepresentation.
- Prevention of sexual harassment and sexual reasons.
In addition, a Register of Business Equality Plans has been created,so they are required to register their equality plans in that register.
Draft Equality and Equal Pay Plans Between Women and Men
The agreement reached by the Ministerial Departments of Labour and Social Economy and Equality, and the CCOO and UGT trade unions, has led to the development of the Draft Regulations on Equality and Pay Equality Between Women and Men, as a pre-approval channel in the Council of Ministers.
These Regulations develop the provisions contained in Royal Decree-Law 6/2019, and in respect of them we highlight below the most important aspects, always bearing in mind the possibility that they may still be subject to alteration in their content.
> Regulation for equal pay between women and men
As regards the regulation for equal pay between women and men, the obligation of remuneration transparency through remuneration records, remuneration audit, the system of valuation of jobs of the professional classification contained in the undertaking and in the collective agreement that applies and the right of information of working persons.
In this point, it develops Article 28 of the Workers’ Statute in order to achieve the effective application of the principle of equal pay for work of equal value, requiring for a correct assessment of the jobs that apply the criteria of adequacy, totality and objectivity, and factors such as: penosity and difficulty, forced postures, repetitive movements, dexterity, thoroughness, isolation, responsibility, versatility, social skills, care and attention skills to people, capacity for conflict resolution or organizational capacity may be relevant. Not forgetting that part-time workers have the same rights, including pay, as full-time workers.
In any event, the negotiating tables of collective agreements shall ensure that the concurrent factors and conditions in each of the professional groups and levels comply with the above-mentioned criteria of adequacy, totality and objectivity, and the principle of equal remuneration for posts of equal value.
In order to ensure transparency in the configuration of perceptions, all companies must have a remuneration record of your entire workforce , including management staff and senior officials, this register shall include the average values of wages, salary supplements and extra-industrial staff perceptions disaggregated by sex and distributed by professional groups, professional categories or jobs equal to or of equal value.
To this end, the arithmetic average and median of what is actually perceived by each of these concepts in each professional group, professional category, level, post or any other applicable classification system shall be established in each company’s remuneration register, appropriately broken down by sex, arithmetic average and median. In turn, this information should be disaggregated in view of the nature of the remuneration, including base salary, each of the supplements and each of the extra-industrial perceptions, specifying in a differentiated way each perception.
It is important to note that companies will have a computerized remuneration registration tool and a computerized job valuation procedure to be approved through a Ministerial Order of the Ministry of Labour and Social Economy and the Ministry of Equality, and may provide where appropriate for such an order that the registration of remuneration and the valuation of jobs carried out meet the formal requirements required by the regulation, where such formats have been used for their implementation and the computerized procedure applied.
In the event that the undertaking in question carries out remuneration audits,the register shall also reflect the arithmetic means and medians of the groups of work of equal value in the undertaking, in accordance with the results of the valuation of jobs, even if they belong to different sections of the professional classification, broken down by sex and disaggregated. In addition, where the arithmetic average or median total remuneration in the undertaking of working persons of one sex exceeds those of the other in at least twenty-five per cent, the employer shall include in the Wage Register a justification that such a difference is subject to reasons unrelated to the sex of working persons.
It should be noted that only companies that develop a equality plan should include in it a audit (with the same or lower validity) in order to obtain the information necessary to verify whether the company’s remuneration system, in a cross-cutting and comprehensive manner, complies with the effective application of the principle of equality between women and men in matters of remuneration. To do this, companies must:
- Diagnose the remuneration situation in the company, which will require:
- The evaluation of jobs, both in relation to the remuneration system and in relation to the promotion system. Job valuation is intended to make an overall estimate of all factors that occur or can occur in a job, should refer to each of the tasks and functions of each job of the company, provide confidence in its results and be appropriate to the business sector of the company , irrespective, in any event, of the type of employment contract with which the posts are to be filled.
- The relevance of other triggers for the pay dispute, as well as any deficiencies or inequalities that may be seen in the design or use of conciliation and co-responsibility measures in the undertaking, or the difficulties that working persons might encounter in their professional or economic promotion arising from other factors such as discretionary business actions in mobility or unjustified availability requirements.
- Establish an action plan for the correction of remuneration inequalities, with determination of objectives, concrete actions, schedule and person(s) responsible for their implementation and monitoring.
In any case, it will be up to the Institute of Women and Equal Opportunities, in collaboration with the most representative trade unions and business organizations, to develop a Technical Guide with indications for conducting gender-sensitive remuneration audits.
All this without forgetting that the application of the provisions of this Regulation for remuneration audits will follow the same gradual application as for the implementation of equality plans, i.e.:
- Companies of more than 150 working persons and up to 250 working people will have a period of one year.
- Companies of more than 100 and up to 150 working persons will have a two-year period.
- Companies of 50 to 100 working persons will have a three-year period.
As regards the scope of administrative and judicialprotection, remuneration information or the absence thereof may serve to carry out appropriate administrative and judicial, individual and collective actions.
> Equality Plans Regulations
Through Royal Decree Law 6/2019, of 1 March, of urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation, an extension of the obligation to negotiate equality plans was carried out, reducing the number of workers from which the undertakings were to do so, their minimum content was realized, including in Article 46 of Organic Law 3/2007, on Equality, their basic aspects, including the conduct of a remuneration audit, and the registration of equality plans was also decreed, a fact which, until that time, was not mandatory.
However, that standard of urgency left in the air a number of aspects which, precisely now, have been finalized:
- on the one hand, it is envisaged that trade unions should participate in the negotiation of the equality plans of those undertakings that are obliged to do so and which do not have legal representation of workers instituted
- and, on the other hand, for the implementation of the mandatory remuneration audit designed as the minimum content of equality plans, provision is made to the publicity of the wage values of the workers of the undertaking through the it application of the management of that audit.
On the other hand, we proceed to briefly break down some of the regulations contained in the agreed draft regulation.
For the calculation of the number of people resulting in the obligation to draw up an equality plan, account shall be taken of the total workforce of the undertaking, whatever the number of workplaces and whatever the form of employment recruitment, including persons with discontinuous fixed contracts, with fixed-term contracts and persons with employment contracts. In any case, each person with a part-time contract shall be counted, irrespective of the number of hours of work, as one more person.
As an aspect to note, we must take into account that this number of persons must be joined by fixed-term contracts, whatever their modality which, having been in force in the company for the previous 6 months, have been extinguished at the time of the calculation. In this case, every 100 days worked or fraction will be counted as one more working person.
This calculation should be carried out for the purpose of verifying that the threshold for staffing persons which makes the equality plan mandatory is reached on at least the last day of June and December of each year.
The obligation to draw up the plan arises once the minimum threshold is reached and will be maintained even if the number of workers falls below 50, once the negotiating commission has been established and until the term of the plan agreed therein, or where appropriate, for 4 years.
However, the negotiation procedures should be initiated, if no other time limit is established collective bargaining within three months of the reach of the staff who make it compulsory, or within three months of the publication of the collective agreement establishing the obligation, unless otherwise set out in the Convention itself.
In any event, the application for registration of the equality plan shall be made within a maximum period of one year from the day following the end of the period to constitute the negotiating committee of the corresponding plan.
One of the most important developments is that of the persons entitled to negotiate the equality plans. In particular, it is noted that, in undertakings where the legal representations in question do not exist, a negotiating committee consisting, on the one hand, of the representation of the undertaking and, on the other hand, of a representation of the workers, composed of the most representative trade unions and by the trade unions representative of the sector to which the undertaking belongs and with standing to be part of the negotiating committee of the collective implementation agreement, shall be established.
The negotiating committee shall have a maximum of 6 members for each party. Trade union representation will be shaped in proportion to representativeness in the sector and ensuring the participation of all legitimate trade unions. However, this trade union commission shall be validly composed of that organisation or organisations which respond to the call for the undertaking within 10 days.
If there are work centres with legal representation and work centres without it, the social part of the negotiating committee shall consist, on the one hand, of the legal representatives of the workers of the centres which have such representation and, on the other hand, of the trade union committee constituted in accordance with the preceding paragraph on behalf of the workers of the centres which do not have the representation referred to. In this case, the negotiating committee shall consist of a maximum of 13 members for each of the parties.
If you need more information regarding the development and implementation of these Equality Plans, you can contact our team of experts in job advice and we help you solve any questions you have about them.