Salary regitster and equal treatment

The fight against the gender pay gap has been stepped up in recent years. On 14 October, two key Royal Legislative Decrees (RDL) were published which further develop the principle of wage transparency introduced by RDL 6/2019.

The RDL 901/2020 of 13 October regulates equality plans and their registration. And RDL 902/2020 of 13 October sets out various new obligations for companies such as payroll registers, salary auditions, etc.

RDL 902/2020: Equal treatment and registration of salaries

From a practical point of view, the compulsory payroll register provided for in RDL 902/2020 has to be highlighted, which introduces a whole series of obligations. The Decree regulates and defines more precisely the principle of "equal pay for work of equal value" (already provided for in Article 28 of the Workers' Statute). The principle applies in the same way to all companies. Neither a collective agreement nor an individual employment contract can contain any provisions to the contrary. For the first time, criteria are now laid down to determine when two jobs have the same value: the nature of the functions and duties, the conditions for admission and the professional and training conditions required by the work and the factors and conditions of work performance. The assessment of these criteria must be appropriate, comprehensive and objective.

The salary register will be one of the most relevant aspects of the new system in the day-to-day running of businesses, as the requirements in this area apply to all businesses without distinction. The register will record the arithmetic mean and average of the salary actually paid in a calendar year in terms of basic salary, bonuses and any extra payment. A breakdown by sex, occupational category, level and position must be provided for each occupational group. The Ministry provides a template for this. The information must cover all staff, including management and executives. The company must consult the workers' representatives at least 10 days before the register is drawn up or amended. At their request, the company must provide them with the data on the actual salary paid, and the employee representatives will make this information available to the employees. If there is no employee representation, employees are informed, at their request, only of the differences between the average salary of men and women.

In order to verify compliance with the principle of equal pay, RDL 902/2020 provides for a further tool, the salary audit, for those companies which draw up an equality plan (see below), either by their own decision or because they are obliged to do so. As part of the salary audit, the company must carry out an analysis of the salary situation, taking into account the evaluation of the jobs and identifying the factors that cause differences in pay. It must also include an action plan to correct these inequalities, setting objectives, concrete actions, a timetable and the people responsible for implementation and monitoring. The salary audit for the same time as the equality plan (unless the latter itself states that it is valid for a shorter period).

If the arithmetic mean or average of the total remuneration of the employees of the company of one sex is at least 25% higher than that of the other sex, the register must contain an objective justification for this (although this may nevertheless be taken as evidence of discrimination). If the company fails to comply with its obligations to keep the salary register, to carry out the salary audit or to provide information, or if unjustified pay gaps exist, administrative fines for discrimination (Article 8.12 of the Law on Violations and Sanctions in the Social Order) of up to € 187,515 and ancillary sanctions such as automatic loss or exclusion from benefits and allowances may be imposed.

RDL 901/2020: Equality plans

The obligation to ensure that there is no discrimination between women and men has been in place since 2007 (for companies with more than 250 employees) and has been in the meantime further developed by RDL 6/2019. The new RDL specifies various aspects in this area.

The obligation to negotiate an equality plan with the employee representatives depends on the number of employees (see below). The RDL 901/2020 defines the calculation of the number of employees for this purpose (in short, the entire workforce of the company, including temporary and part-time contracts, is taken into account). The calculation must be made at least on the last day of June and December of each year. In the event of a reduction in staff, the obligations will remain in force for the duration of the agreed plan. Companies, regardless of their size, may be obliged to negotiate an equality plan if the applicable collective agreement provides for it.

From the moment the minimum number of employees required is reached, the company has three months to start negotiations (which may not exceed one year). RDL 901/2020 sets out in detail who to negotiate with (distinguishing between groups of companies, companies with and without employee representation and the case where there are branches with employee representation and others without) and the negotiating process itself. Once an agreement has been reached, it must be submitted to the labour authority for filing and registration.

Art. 8 of the RDL defines the minimum content of the equality plan: a) the contracting parties b) the personal, territorial and temporal scope c) the diagnostic report d) the result, validity and periodicity of the salary audit e) the qualitative and quantitative objectives f) the description of the specific measures g) the means and resources required h) the timetable of measures i+j) the monitoring and evaluation system k) the procedure for amending and resolving discrepancies

Deadlines for implementing the new measures

The deadlines for implementing the various obligations vary according to the size of the company.

Obligation	Obligated companies	Date
Salary register, justification of salary gaps, evaluation of the positions	All companies	14.04.2021
Salary audits	>151 employees 101-150 employees 50-100 employees	14.04.2021 07.03.2021 07.03.2022
Analysis, negotiation and content of the equality plan	>151 employees 101-150 employees 50-100 employees	14.01.2021 07.03.2021 07.03.2022

Autor: Luis Bravo