Extent of Protection
Three key measures offer protection: i) the Organic Act 3/2007 of 22 March; ii) Royal Decree Law 6/2019 of 1 March, on urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation; and iii) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006, on the application of the principle of equal opportunities and equal treatment for men and women in matters of employment and occupation.
The central, regional and local governments will actively mainstream the principle of equal treatment and opportunities for men and women (established by the Organic Act 3/2007) in the adoption and implementation of their legislative provisions. Moreover, from time to time, the State Government will approve a Strategic Plan for Equal Opportunities, which will include measures to attain the objective of equality between women and men and eliminate discrimination on the grounds of gender. Additionally, the Organic Act regulates affirmative actions. Such measures, which will be applicable while the situation exists, must be reasonable and proportional to the objective pursued in each case. Equality plans will stipulate the specific equality objectives to be reached, the strategies and practices to be adopted to attain them, and the establishment of effective monitoring and assessment systems.
Employees can change equal pay practices through their participation in the application and elaborationn of equality plans; mandatory for companies with over 250 employees, when mandated in the applicable CBA and when the labour authorities agree to substitute the formulation and implementation of such a plan for accessory penalties, resulting from penalty proceedings. Royal Decree-Law 6/2019 modifies the Organic Act and requires companies with 50 or more workers to draft equality plans and mandates that such plans shall be registered accordingly. If an employee believes that the company did not adhere to an equal pay practice, he is entitled to initiate an internal demand (within the company) for the protection of his labour rights. However, if the company does not have an internal procedure for this type of claim, a demand can be filed with the courts or the relevant labour inspection authority in order to guarantee the equal pay provisions.
Examples of remuneration discrimination can be found in case law related to the existence of a double salary scale. Specifically, the Supreme Court held that the company’s salary structure comprised an unlawful double pay scale based on a personal complement of seniority, which led to a policy to establish wage differences between workers as a result of their entry date into the company, exclusively. Likewise, the discrimination in remuneration is also manifested in the classification and professional promotion of employees. The leading case law relating to discrimination involved a discrimination in remuneration established in the collective agreement between the professional category of labourer (mostly men) and the professional category of cleaners (mostly women), when both professional categories carried out manual work of equal value.
Spain recognises and protects the right of men and women to receive equal pay for work of equal value. Also, the employer has an obligation to maintain a Salary Record, regardless of the number of workers, that must include the average values of salaries, salary supplements and extra-salary perceptions, such values being separate by gender and distributed by professional groups, professional categories and equal job posts or job posts of equal value. In companies with at least 50 workers, when the average of the remuneration of one gender is higher than the other by 25% or more considering the total payroll or the average of the paid perceptions, the employer has the obligation to include in the aforementioned salary record, a justification to prove that the difference does not correspond to reasons related to the gender of the workers. Lastly, in the event of invalidity due to wage discrimination on grounds of gender, the worker will have the right to the remuneration corresponding to equal work or work of equal value.