The Gender Pay Gap and Social Partnership in Europe

Findings from "Close the Deal, Fill the Gap"

Hazel Conley,Donata Gottardi,Geraldine Healy,Barbara Miko?ajczyk,Marco Peruzzi

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351731966
• Edition: 1
• Topic: Business
• Subtopic: Business General
• Index: Business

The gender pay gap (GPG) exists in every European country, but it varies considerably, even in EU member states covered by the same legal principles on pay equality. Part of the variation can be explained by different patterns of social partnership. With current policy pressure to de-centralise collective bargaining and increase the percentage of pay linked to productivity, what role can social partnership play in tackling the GPG?

Reporting on the findings of the European Commission funded research project "Close the Deal, Fill the Gap", this book uses an interdisciplinary analysis involving legal, economic, and sociological expertise, to explore the role of social partnership in GPG in Italy, Poland and the UK. Selected on the basis of their contrasting profiles in terms of legal regulation, industrial relations, systems of collective bargaining, coverage of collective agreements, and differing rates of the GPG, the in-depth study provides important insights into the main issues underlying the problem of reducing the gender pay gap which have led to guidelines in the negotiation of arrangements on GPG-related issues.

Based on a unique comparative, interdisciplinary and action-oriented esearch project, it will be of great interest to all researchers and advanced students with an interest in women's representation in the workforce and the gender pay gap, as well as practitioners and policy makers in organisations such as trade unions and employers' associations.

1 National frameworks and the gender pay gap in Italy, Poland and the UK

Comparing oranges with apples?

Hazel Conley, Alberto Mattei, Urszula Torbus and Joanna Nowakowska-Małusecka

Introduction

This chapter considers the legal, economic and industrial relations context with reference to the three countries on which the research focuses: Italy, Poland and the UK. As the title of the chapter suggests, drawing on Locke and Thelen’s (1995) seminal article, we adopt a ‘contextualised comparisons’ approach to our analysis to establish how EU law on pay equality is refracted through different institutional settings. We further use the concept of functional equivalence to identify the specific issues and pressure points that have been instrumental in conceptualising and attempting to achieve equal pay and close the gender pay gap (GPG) in each country. However, to aid a more direct, ‘matched comparison’ and to provide contextual information important for later chapters in the book, we structure our analysis of each country under common headings covering the basic regulatory framework, case law, wage system and tax and social security frameworks as they impact on pay equality.

Article 157(1) of the TFEU requires each member state to fulfil the principle of equal pay for male and female workers for equal work or work of equal value. It is up to each member state to transpose these concepts into domestic law. Starting from the reconstruction of the principle of equal pay between men and women as stated in EU law, the chapter focuses on the typical aspects of each regulatory system and how EU law has been transposed, highlighting the characteristic features from a comparative perspective. With regard to Italy, the attention focuses on the reconstruction of the concept of equal pay, giving particular attention to the debate within the Italian labour law literature, which has focused, on the one hand, the issue of pay and equal remuneration between men and women and, on the other hand, discrimination and the prohibition of discrimination in remuneration, within the frame of the decentralisation of collective bargaining promoted in legislation in recent years. Regarding Poland, the analysis will focus on the post-communist development of the country, with its high level of statutory regulation and a weakening influence of the trade unions. It will present the necessary legal framework, concerning among others the principle of equal pay for men and women, prohibition of discrimination and regulations on remuneration. For the UK, attention will fall on the peculiarities of the English system, typified by the voluntary and decentralised nature that characterises collective bargaining and the individualistic nature of the legal framework that has resulted in considerable case law. Finally, this chapter will identify the areas of similarities and differences between the systems, starting from the common drive in the EU for the decentralisation of collective bargaining, which has intensified following the most recent economic and financial crisis.

Italian national legal framework

Regulatory framework

In the Italian legal system, the principle of pay equality between men and women at work is enshrined by Art. 37 of the Constitution, which states that ‘working women are entitled to equal rights and equal pay for equal work’. This article is directly enforceable against both individual employment contracts and collective agreements. The concept of ‘equal work’ must be interpreted as ‘equal job position and tasks’ and not ‘equal performance’; and the assessment of GPGs needs to take into account the overall compensation, not just the minimum wage granted in accordance with the principles of proportionality and sufficiency set forth by Art. 36 of the Constitution (Ballestrero, 1979; Barbera, 1991; Treu, 1979). Italy does not have a minimum wage system, although it has been considered but not implemented for certain types of atypical contracts. The wage system is determined by national collective bargaining.

At the legislative level, the effectiveness of the principle of pay equality is ensured by Art. 15 Law 300/70. It contains a general prohibition of discriminations on grounds of different risk factors, gender included, and especially by Art. 28 Delegated Decree 198/2006 (known as the Equal Opportunities Act), which states that any direct or indirect discrimination concerning any pay aspect or condition regarding equal work or work of equal value is forbidden. This text also contains the notions of direct and indirect discrimination (Art. 25 Delegated Decree 198/2006, already established by l. 125/1991) (see Scarponi, 2014).¹ Job classification systems aimed at determining pay are required to adopt common criteria for men and women and be designed so as to remove discrimination. This provision was specifically reinforced by Delegated Decree 5/10, aimed at implementing Directive 2006/54/EC, which introduced a specific reference to direct and indirect discriminations as well as to any aspect or condition of pay and the need for work responsibilities to enable the removal of pay-related discrimination. It also introduced a specific reference to gender-related pay discrimination in sanction regulations. In case of discrimination, the following sanctions may be applied: withdrawal of public financial supports, incentives or benefits, exclusion from public procurements and financial penalty.

The Italian system is characterised by a multiplicity of institutional players and actions (Guarriello, 2007). The effectiveness of the principle of pay equality is ensured by the promotion of equal opportunities programmes by the National Committee for the Implementation of Equality Between Men and Women (Art. 8 Delegated Decree 198/06). These programmes can also be proposed as a solution for removing collective pay discrimination (Art. 10, par. 1, let. g), although such actions are one of the least implemented by the Committee. There is a survey on GPGs carried out by employers (national, regional or provincial) and provided to Equality Counsellors (Art. 15 par. 1, a). It must be said, however, that despite the provision provided for this survey by existing Italian law, the survey has turned out to be an ineffective instrument for monitoring the GPG. There is also a specific judicial protection, and public and privately owned companies with more than 100 employees are required to deliver a report on employee conditions, pay included, every two years and send it to the competent Regional Equality Body as well as to the union representatives in the workplace (Art. 46 amended by Delegated Decree 5/10 with possible financial administrative fines; see Chapter 6). Legislation makes use of reflexive and command-and-control techniques. For example, legislation has fostered company-based self-regulatory solutions by providing financial support to affirmative action programmes (Articles 43–44–45 Delegated Decree 198/2006, for further details see Garofalo, 2002).

Other areas of legislation also potentially have a bearing on the GPG in the Italian labour law system. For example, legislation regarding part-time contracts prevents indirect gender discrimination by enshrining a principle of non-discrimination between part-timers and full-timers, in accordance with Directive 97/81/EC (Delegated Decree 81/2015, which repealed Delegated Decree 61/00). This is particularly relevant for women, as it is statistically more probable for a woman to have this type of part-time agreement (Scarponi, 2014). Now the legislation of 2015 (known as the Jobs Act) only states that part-timers cannot be treated less favourably than full-time workers and are entitled to the same economic and normative rights as full-timers on a pro rata basis. Moreover, while the previous law specifically enabled individual contracts and collective agreements to provide a more-than-proportioned measurement of performance-related pay elements for part-timers (Art. 4, par. 2, Delegated Decree 61/00), such a provision is not provided in the Delegated Decree 81/2015.

Regarding collective representation, the legal system recognises and protects unions and collective bargaining at the constitutional level (Art. 39 Const.) and collective bargaining can be carried out at both national and decentralised levels. Since the second part of Art. 39 Const. was not implemented by the required legislative measures, collective agreements do not have erga omnes (agreements cover all workers, not only members of signatory unions) legal effects: on the grounds of established case law, the clauses of (national) collective agreements concerning minimum wages can be judicially applied, even if the employer is not a member of the signatory association. Within the context of litigation, a judge must determine whether a salary is consistent with the principle of sufficiency and proportionality of pay enshrined by Art. 36 Const.

In particular, subjects ordinarily covered by collective agreements are: minimum wages, which are set at national level, job classification, use of atypical contracts (such as part-time, fixed-term contracts, etc.), productivity-based bonuses (generally set at a decentralised level), and collective relationships between the signatory parties. Further subjects include company welfare benefits (such as company nursery schools, complementary pension schemes, company health insurance, etc.), work time training, work–life balance arrangements, occupational health and safety, outsourcing and disciplinary sanctions.

Following the policy guidelines set by the Euro Plus Pact in 2011, as reaffirmed by the European Central Bank (ECB) letter to Italy of August 2011, decentralised collective bargaining was strongly fostered and supported by Art. 8, Law Decree 138/2011, as converted in Law 148/2011, which may have a gender pay impact. Generally, collective agreements cannot derogate in peius (that is to say, they cannot be replaced by collective agreements inferior to those which are currently in force) from protective statutory law, but under this provision and on condition that specific conditions (subjects, objectives and negotiating parties) are fulfilled, decentralised collective agreements can derogate from both national collective agreements and legislative regulations and be given erga omnes effects. Furthermore, in order to foster collective bargaining of performance-related pay, the legislator introduced a reduction of social-security contributions for collectively negotiated performance-related pay elements and the reduction of tax rates applicable to these pay elements, when negotiated by collective agreements, which have been strongly promoted in 2016 and 2017 (for a detailed summary of the consequences of the above, see Chapter 6).

In the Italian system, collective agreements expressly promote gender equality (Borgogelli, 1992; Recchia, 2002; Ferrara, 2014) and deal with gender-related issues by regulating the protection of maternity with an increase of maternity pay and/or specific training programmes aimed at facilitating return to work, parental leave, paternity leave on the occasion of childbirth, care-giving leaves, work–life balance provisions such as a right to switch from full-time to part-time, and working from home. These are generally guaranteed at a national collective level, however, at the secondary level, many big companies will offer more incentives. Contractual provisions both at the national and decentralised level can also have an indirect gender-related impact. With regards to the GPG, they can have an indirect impact on wage differentials between men and women when dealing with compensation for typically male-dominated job positions (travel allowances, allowances for uncomfortable shifts and/or arduous works) and criteria for measuring productivity and awarding performance-related pay elements based on work attendance (see Chapter 2).

Case law

To put it briefly, it is possible to synthesise the role of case law related to gender pay discrimination into three parts: its handling within national case law; its more recent developments; and the level of consistency of the Italian system regarding the EU principles on the basis of what the ECJ has defined.

First, the case law from Court of Legitimacy has traditionally established that the constitutional principle of equal pay for workers of different genders imposes equal economic treatment on the basis of equal qualifications and duties between men and women without considering the performance of their work, but it must not take into account any extra allowance over minimum pay perceived by individual merits (Cass. 209/1984; Cass. 2082/1980; Trib. Milano 9.11.1981; Pret. Milano 22.12.1989, more generally, Treu, 1979). In general, for the case law, Art. 37 Cost. is a precept and is a norm of immediate application to individual employment contracts and to collective bargaining if they contain clauses that conflict with the constitutional precept (Cass. 672/1974). Classically, in the evaluation of equal remuneration between men and women, it is noted the overall economic treatment and not only the minimum treatment under Art. 36 Cost which states, ‘the workers have the right to receive a salary commensurate with quality and quantity of their work and otherwise sufficient to ensure a free and dignified life for them and their family’ (Cass. 291/1984). In each case, the protection provided by law with regard to the abstention or otherwise planned absence (i.e. maternity leave) cannot justify any variation in salary equality (Lassandari, 2018). Again, on the complex...