The principle of equality of employment and opportunity, as well as the principle of equal pay for equal work, are widely recognised both internationally (inter alia, in Article 23.2 of the Universal Declaration of Human Rights), at the European level (Article 23 of the Charter of Fundamental Rights of the European Union), and at the national level (Article 28 of the Workers' Statute).
With the approval of Royal Decree-Law 6/2019, the Spanish legislator has looked deeper into these principles, already enshrined in our legal system, by imposing new obligations on companies, to whom it grants the role of guarantor of these principles of equal opportunities and remuneration, and on whom it imposes the obligation to keep a salary register.
This register should reflect, broken down by sex and group, professional category or performance of work of equal value, the following concepts:
- Average value of the salary, both monetary and in kind;
- Average value of salary supplements;
- Average value of non-salary payments (e.g. allowances or travel compensation).
This obligation to register comes up against a first question of a practical nature: what remuneration should the registration reflect in cases of part-time service provision? Although Royal Decree-Law 6/2019 does not expressly provide for this issue, the purpose of the regulation (which is none other than to detect, by comparing remuneration, the possible existence of salary discrimination) leads us to conclude that "standardised remuneration" should be included; That is, the remuneration that workers would receive if they had worked full-time throughout the period referred to.
Secondly, it is necessary to assess what is considered "work of equal value" for the purposes of salary registration. This issue is expressly settled in article 28, paragraph II, of the Workers' Statute, which provides that one job shall be the same as another when the following issues are equivalalent:
- The nature of the functions or tasks actually assigned;
- The educational, professional or training conditions required to exercise the role;
- Factors strictly related to performance and;
- The working conditions in which the assigned activities are carried out.
The amendment made by Royal Decree-Law 6/2019 to article 28 of the Workers' Statute is not limited to introducing the obligation to keep a salary register, but also establishes the right of workers to access it (and, therefore, the obligation for the company to make the register available to them). To this end, it is specifically established that access to the register will be through the workers' representatives, who are those persons to whom the company is obliged to provide the information. In this way, when workers individually wish to access the register, they must communicate it to the workers' representatives, who will request it from the Company.
In any case, irrespective of whether requests for access to the register are made, the company must at least inform the workers' representatives on an annual basis of the contents of the register. Likewise, if the company has more than 50 workers, the contents of the register must be communicated to both the representatives and the negotiating committee of the equality plan. In this way, the obligation to communicate the contents of the register annually implicitly derives the company's obligation to update the register at least once a year.
The purpose of these requirements is to assess the possible existence of a salary gap. In this regard, article 28.2 of the Workers' Statute establishes that a salary gap shall exist when the average salaries of workers of one sex are 25% or more higher than the salaries of workers of the other sex. In order to carry out this valuation, the total salary bill or the average of the precepts satisfied will be taken as a reference. In this sense, when, even in the existence of the aforementioned 25% difference between workers of either sex, the company justifies, in the salary register, that this difference does not respond to reasons related to the sex of the workers, it will not be understood that the difference implies the existence of a salary gap.
Finally, Royal Decree-Law 6/2019 modifies article 7.13 of the Law on Infringements and Penalties in the Social Order, establishing a fine of between €626 (at its minimum degree) and €6,250 (at its maximum degree) as a consequence of non-compliance with the obligation to keep a salary record.
Faced with these demands, a multitude of questions arise (concerning, among others, what reasons the Labour Inspectorate will accept as justified for exceeding the percentage of 25%) which, together with the lack of consolidated case law on the matter, make this new obligation to register a matter open to different interpretations. Legal insecurity is a concern, so we must await the action of the Labour Inspectorate (and any possible court judgments that may arise as a result of this) in order to know with certainty the scope and content of the new precept of the Workers' Statute.