In its recent resolution, CESI calls on the European Parliament and the Council to uphold, in their negotiations on a final directive, in particular the following provisions that the European Commission put forward in its proposal:

1. the scope of the directive, covering employers in the private and public sectors (Article 2)
2. the inclusive and encompassing definition of elements that constitute “pay” and must fall under pay transparency measures (Article 3.1.a)
3. the clear and unequivocal wording about the objective that “Member States shall take the necessary measures to ensure that employers have pay structures in place ensuring that women and men are paid equally for the same work or work of equal value” (Article 4.1)
4. the obligation for employers to state initial pay levels in job vacancy notes “without the applicant having to request it.” (Article 5.1)
5. the obligation for employers to ensure gender–neutral criteria to determine pay levels and career progress opportunities (Article 6)
6. the explicit right of workers to disclose their pay level for the purpose of enforcing equal pay between men and women for equal work or work of equal value, for instance through equality bodies (Article 7.5)
7. the elements falling under pay transparency reporting obligations (Article 8.1) and the obligation for employers to publish information about these elements to workers and their representatives (Article 8.3–5)
8. the provision that, where the disclosure of pay information would lead (directly or indirectly) to the disclosure of the pay of an identifiable co–worker, access to this pay information can be limited to equality bodies and the representatives of the worker who is discriminated against, which can then act to remedy the discrimination (Article 10.3)
9. the explicit provision that worker representatives can act on behalf of workers in administrative and judicial proceedings to enforce equal pay for equal value (articles 12 and 13).
10. the provision that in cases of pay discrimination, a compensation payment is due for the affected worker at a level as “if no infringement [of pay equality provisions under the directive] had occurred” (article 14.3), in addition to a recovery of legal costs incurred (where judicial proceedings were involved, as laid out in article 19)
11. penalty payments for employers who refuse obligations under the directive (as laid out in article 15)
12. the obligation for employers, in judicial proceedings, to prove that “that there has been no direct or indirect discrimination in relation to pay” as opposed to affected workers having to prove that there was such discrimination (as laid out in article 16)

CESI also calls on the European Parliament and the Council to further strengthen especially the following elements of the European Commission’s proposal:

13. In article 3, a definition of “representatives of workers” (which is referred to on numerous occasions throughout the proposal) should be included, specifying that this relates to trade unions and thus ruling out the possibility for employers to establish their own agents as “representatives” for the purpose of this directive.
14. In article 6, employers should be obliged to “provide” workers with a description of the criteria used to determine pay levels and career progression “without the workers having to request it” rather than being obliged to make this information “easily accessible”, which is subjective and very much open to interpretation. A right to request means that workers proactively have to ask for information. Especially where precarious employment exists and power relationships are already strongly tilted towards employers, workers will not dare to ask for reasons of being victimised afterwards. Without regularity and automaticity in the process, the directive would not benefit those workers that need it most.
15. Concerning article 7.1.–3., employers should be obliged to “provide” workers with information on their individual pay level and the average pay levels (broken down by sex, for categories of workers doing the same work as them or work of equal value to theirs) rather than workers having “the right to receive” it. A right to request means that workers proactively have to ask for information. Especially where precarious employment exists and power relationships are already strongly tilted towards employers, workers will not dare to ask for reasons of being victimised afterwards. Without regularity and automaticity in the process, the directive would not benefit those workers that need it most.
16. As regards the articles 8 and 9, which stipulate that provisions on pay transparency should apply to employers with at least 250 workers, this figure should be reduced significantly in order to not exclude a too large number of workers from the scope of the directive. At the same time, in order to prevent excessive administrative burdens for smaller employers with limited human resources staff, the directive should oblige the national equality bodies to develop software tools and forms that employers can use to report on pay transparency obligations.

The full position is available here.