I.P. Asscher-Vonk Equal Pay, June 22 2018 This Course is funded by the Erasmus + Jean Monnet program of the European Commission. Iren

I. Introduction. Importance of European equal pay law Recital 8 the preamble of the Recast Directive: “The principle of equal pay for equal work….constitutes an important aspect of the principle of equal treatment between men and women and an essential and indispensable part of the acquis communautaire…”

Reasons to fight unequal pay: 1. (unfair) competition 2. discrimination 3. position of women in society

In the Preamble of the Recast Directive (2006/54) (8) The principle of equal pay for equal work or work of equal value as laid down by Article 141 of the Treaty and consistently upheld in the case-law of the Court of Justice constitutes an important aspect of the principle of equal treatment between men and women and an essential and indispensablepartof the acquiscommunautaire, including the case-law of the Court concerning sex discrimination. It is therefore appropriate to make further provision for its implementation

II. Union legislation Article 157 Treaty on the functioning of the European Union 1.   Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. ……..

Effect Direct Horizontal (Defrenne II, ECJ April 8 1976, 43/75)

1. Who is addressed by the rule? Employer, anyone who pays the compensation for instance pension fund

2. Who is protected? worker

3. Main rule: equal pay Pay: the ordinary basic or minimum wage And any consideration in kind or cash (also pension rights, traveling rights etc) Equal: that pay for work at time rates shall be the same for the same jobs Equal value: considering not only the work concerned, but also training etc. ECJ (ECJ 11 May 199, C-320/00 Comparison: male/female, on the grounds of sex Is, has been or would be treated (Recast D, 2.1) Same source

Pregnancy and maternity Adapted job: Parvainen. Payment for the job done, keeps basic salary, no supplements During leave: Building up bonus, pay rise, continues Full wages nog required, but should not undermine purpose of protection of women If ill, caused by pregnancy or confinement: should be treated in the same way as man -

Part time work Equal hour rate: 157 2, b TFEU Pay (hourly wages) for overtime: result should be that fulltimers and parttimers receive the same pay for the same number of hours (Voss C-300/06, ElsnerC-285/02) Supplement: the rule that only after surpassing the full time workingtime a supplement is paid, is not discrimination of parttimers: (Helmig C-399/92)

4. Exception: special advantages Article 157 TFEU 4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

Protection, Recast Directive Article 28 1. This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity. 2. This Directive shall be without prejudice to the provisions of Directive 96/34/EC and Directive 92/85/EC Is this an exception? Note: 96/34EC-parental leave, 92/85/EC pregnancy protection

Objective justification: Recast Directive Article 2 Definitions 1. For the purposes of this Directive, the following definitions shall apply: … (b) ‘indirect discrimination’: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary;

Exception: Barber

5. remedies Entitlement to the same pay But downward adaptation possible if by regulation

III Evaluation What pay gap is aimed at by EC-law? And why? 1. (unfair) competition 2. discrimination 3. position of women in society Does the law offer remedies for: Total total pay is lower because women work part time work Total pay is lower because women work in low wages industries What would be needed to remedy that?