On Friday 1 March 2019, the Council of Ministers passed Royal Decree-law 6/2019 on urgent measures for the guarantee of equal treatment and opportunities between men and women in employment (the “Royal Decree-law 6/2019”). Published on 7 March 2019 in the Official State Gazette (the "OSG") it came into effect on 8 March 2019.
The measures approved by the Royal Decree-law 6/2019 is clearly intended to guarantee the equal treatment and opportunities between men and women in employment, in order to ensure the co-responsibility of personal, family and work life between men and women.
To this end, it is required, on the one hand, an organic reform of the Workers’ Statute (the “WS”). On the other hand, the amendment of the Organic Law 3/2007, of 22 March, for the effective gender equality:
a) The proposal to reform the WS responds to the need to guarantee equal pay without discrimination and the right to exercise the co-responsibility of personal, family and work life between men and women. To that effect, any type of direct and indirect sexual discrimination is prohibited.
· The principle of equal remuneration is reinforced in several articles of the WS, as described below:
- A new section 3 has been included in Article 9 of the WS in relation to contract validity: “in the case of nullity due to gender salary discrimination, the employee will be entitled to the payment corresponding to equal work or value”. This wording seems to be not clear enough as regards the scope of this section. Hence, we need to wait for the final wording in order to know the pursued objective.
- Article 28 of the WS has been modified in relation to equal pay for men and women by adding a paragraph to section 1 and including sections 2 and 3. This highlights the inclusion of “equal pay for work of equal value” into our legal system and complying with the Recommendation of the European Commission on 7 March 2014, in relation to the reinforcement of the principles of equal pay for men and women through transparency. Thus, “every work will have equal value when the nature of the functions or the effectively assigned tasks, the educational, professional or training conditions, required for the exercise of the work, the elements strictly related to its performance and the labour conditions in which such activities are carried out are, in fact, equivalent”.
In this respect, companies are obliged to “keep record of the average value of salaries, salary complements and extraordinary salaries of their headcount, divided by gender and distributed by professional groups, professional categories or equal working positions”. Employees will be able to access to their company’s salary record by means of the employees’ representatives or the works council.
Apart from the above, Royal Decree-law 6/2019 imposes an additional obligation on those companies with at least 50 employees complying with the following: the average salary for employees of one gender reaches at least 25% or more of those of the opposite gender. In this case, the company is obliged to include in the salary record an objective reasoning as to this salary gap is not based on gender reasons.
· Other amendments aimed at ensuring gender equality:
- With regard to the principle of equality between part-time employees and full-time employees provided for in Article 12.4, section d, the additional duty to guarantee the lack of direct and indirect discrimination between men and women.
- A new paragraph has been added to Article 14 section 2 of the WS in order to set out the trial period: “termination by the employer will be null and void in the case of employees due to pregnancy from the start date of the pregnancy until the start date of the suspension as referred to in Article 48.4 or maternity, unless there are other reasons not-related to pregnancy or maternity”.
- Both letter c) section 4 of Article 53 and letter c) section 5 of Article 55 of the WS have been modified in relation to null and void objective and disciplinary dismissal. Specifically, the dismissal of an employee will be declared null and void when reinstated at work after the end of the suspension period due to childbirth, adoption or custody, on the condition that 12 months have not elapsed (in the former legislation this period was 9 months) from the date of childbirth, adoption or custody.
· The right of balance personal life, family and work is reinforced: Section 8 of Article 34 of the WS is modified to include the possibility of employees to request adjustments of the duration and distribution of their working time in order to materialize their right of family and work balance. Apart from that, employees also enjoy the leaves set out in Article 37 of the WS. However, such adjustments will be reasonable and proportionate with the needs of the employee and the organization or production needs of the company.
If the employee has a child he/she will be entitled to exercise this request until the child is 12 years old.
Royal Decree-law 6/2019 allows collective bargaining the possibility to regulate the terms of use of this request. In its absence, a negotiation procedure would occur between the company and the employee with a maximum duration of 30 days and would be finalized with a document signed by the company stating: (i) the approval of the request or (ii) the refusal of the request based on objective reasons. If there is no agreement the labour courts will decide through a special procedure to exercise the right of personal, family and work life balance, as stated in Article 139 of Law 36/2011, of 10 October, on labour procedure.
· The co-responsibility of parents for the childbirth is guaranteed:
- With regard to the rights of reduction on working time in case of childbirth, adoption or custody, as set out in Article 37.4 of the WS, this right, cannot be transferred from one parent, adoptive parent or legal guardian to another. Additionally, if two employees of the same company exercise this right for the same child, the company may limit their simultaneous right due to justified reasons based on objective grounds by means of a written communication.
- Article 48 of the WS is modified with regard to the suspension of the employment contracts with the right to return to the same working position. Specifically, the duration of suspension of the employment contract is increased to 16 weeks for the parent other than the biological mother. The 6 weeks following the childbirth will be obligatorily uninterrupted and enjoyed in full time basis.
In addition, once 6 weeks postpartum have elapsed and subject to prior communication of at least 15 days, parents can distribute the period of the suspension contract in weekly periods, either in full or part-time regime, and can exercise from the end of the mandatory suspension after childbirth until the child is 12 years old. In this regard, the biological mother will also be able to anticipate the request up to 4 weeks before the predictable date of birth. This right cannot be transferred to the other parent.
If both parents work in the same company and want to exercise this right, the company may limit their simultaneous use due to justified and objective reasons, duly communicated in writing.
However, the 16 week suspension period to be enjoyed by the parent other than the biological mother will be applied gradually. Therefore, a new 13th Transitory Provision is included in the WS as follows:
- As from the entry into force of Royal Decree-law 6/2019, the other parent will be entitled to a total suspension period of 8 week, of which the first 2 weeks after childbirth must be uninterrupted. The biological mother will be able to grant the other parent up to 4 weeks of her non-mandatory suspension period.
- As from 1 January 2020, the other parent will be entitled to 12 week suspension period, of which the first 4 after childbirth will be uninterrupted. The biological mother will be able to grant the other parent up to 2 weeks of her non-mandatory suspension period.
- As from 1 January 2021, both parents will enjoy the same suspension period as stated above.
b) The proposal to modify the Organic Law 3/2007 is focused on the extension of the cases in which companies must prepare their equality scheme.
Until the approval of Royal Decree-law 6/2019, companies with more than 250 employees were obliged to implement their corresponding equality scheme. This obligation is now extended to companies with 50 or more employees (amendment of section 2 of Article 45).
Previously to the preparation of the equality schemes, the companies must carry out a negotiated diagnosis, where appropriate, with the employees’ representatives including the following matters: (i) selection and recruitment process; (ii) professional classification; (iii) education; (iv) professional promotion; (v) working conditions, including the salary monitoring between men and women; (vi) the exercise of personal, family and work life balance; (vii) female under-representation; (viii) remuneration; (ix) sexual harassment prevention (modification of section 4 of Article 46).
Once the equality scheme has been prepared, companies must register them in the Register for Company Equality Schemes, as part of the Registry of collective bargaining agreements (new sections 4, 5 and 6 in Article 45).
In order to comply with Royal Decree-law 6/2019 provisions, specific deadlines are introduced to proceed with the preparation of the equality schemes taking into account the size of the company (new 10th Transitory Provision). Therefore, companies with 50-100 employees have a 3-year deadline; companies with 100-150 employees have a 2-year deadline and companies with 150-250 employees have a 1-year deadline. These deadlines will have to be calculated from the publishing date of Royal Decree-law 6/2019 in the OSG, that is, on 7 March 2019.
We remain at your disposal for any questions or queries that may arise in relation to Real Decree-law 6/2019.
