47 Amendments of Alin MITUȚA related to 2021/0050(COD)
Amendment 211 #
Proposal for a directive
Recital 9
Recital 9
(9) The gender pay gap is caused by various factors, part of which can be attributed to direct and indirect gender pay discrimination. A general lack of transparency about pay levels within organisations maintains a situation where gender-based pay discrimination and bias can go undetected or, where suspected, are difficult to prove. Binding measures are therefore needed to improve pay transparency, encourage organisations to review their pay structures to ensure equal pay for women and men doing the same work or work of equal value, foster the adoption of remedial measures on the ground where unjustified differences are identified and enable victims of discrimination to enforce their right to equal pay. This needs to be complemented by provisions clarifying existing legal concepts (such as the concept of ‘pay’ and ‘work of equal value’) and measures improving enforcement mechanisms and access to justice.
Amendment 215 #
Proposal for a directive
Recital 10
Recital 10
(10) The application of the principle of equal pay between men and women should be enhanced by eliminating direct and indirect pay discrimination through transparency and remedial measures. This does not preclude employers to pay differently workers doing the same work or work of equal value on the basis of objective, gender-neutral and bias-free criteria such as performance and competence.
Amendment 216 #
Proposal for a directive
Recital 10
Recital 10
(10) The application of the principle of equal pay for equal work or work of equal value between men and women should be enhanced by eliminating direct and indirect pay discrimination. This does not preclude employers to pay differently workers doing the same work or work of equal value on the basis of objective, gender-neutral and bias-free criteria such as performance and competence.
Amendment 255 #
Proposal for a directive
Recital 15
Recital 15
(15) In order to respect the right to equal pay between men and women, employers must have pay setting mechanisms or pay structures in place ensuring that there are no pay differences between male and female workers doing the same work or work of equal value that are not justified by objective and gender-neutral factors. Such pay structures should allow for the comparison of the value of different jobs within the same organisational structure. In line with the case law of the Court, the value of work should be assessed and compared based on objective criteria, such as educational, professional and training requirements, skills, effort and responsibility, work undertaken and the nature of the tasks involved.49 _________________ 49 For example, Case C-400/93, Royal Copenhagen, ECLI:EU:C:1995:155; Case C-309/97, Angestelltenbetriebsrat der Wiener Gebietskrankenkasse, ECLI:EU:C:1999:241; Case C-381/99, Brunnhofer, ECLI:EU:C:2001:358; Case C-427/11, Margaret Kenny and Others v Minister for Justice, Equality and Law Reform and Others [2013] ECLI:EU:C:2013:122, paragraph 28.
Amendment 263 #
Proposal for a directive
Recital 16
Recital 16
(16) The identification of a valid comparator is an important parameter in determining whether work may be considered of equal value. It enables the worker to show that they were treated less favourably than the comparator of a different sex performing equal work or work of equal value. In situations where no real-life comparator exists, the use of a hypothetical comparator should be allowed, allowing a worker to show that they have not been treated in the same way as a hypothetical comparator of another sex would have been treated. This would lift an important obstacle for potential victims of gender pay discrimination, especially in highly gender-segregated employment markets where a requirement of finding a comparator of the opposite sex makes it almost impossible to bring an equal pay claim. In addition, workers should not be prevented from using other facts from which an alleged discrimination can be presumed, such as a reference to an existing classification based on social partners’ collective agreements at branch or at sector level, statistics or other available information. This would allow gender-based pay inequalities to be more effectively addressed in gender-segregated sectors and professions.
Amendment 290 #
Proposal for a directive
Recital 20
Recital 20
(20) The lack of information on the envisaged pay range of a job position creates an information asymmetry which limits the bargaining power of applicants. Ensuring transparency should enable prospective workers to make an informed decision about the expected salary without limiting in any way the employer’s or worker’s bargaining power to negotiate a salary even outside the indicated range. It would also ensure an explicit and non- gender biased basis for pay setting and would disrupt the undervaluation of pay compared to skills and experience. This transparency measure would also address intersectional discrimination where non- transparent pay settings allow for discriminatory practices on several discrimination grounds. The information toshould be provided to applicants prior to employment, if not published in a job vacancy notice, could be provided to the applicant prior to the job interviewwho enter the final stage of recruitment prior to employment by the employer or in a different manner, for instance by the social partners.
Amendment 316 #
Proposal for a directive
Recital 24
Recital 24
(24) AllWorkers whose employer employs at least 50 workers should have the right to obtain information, upon their request, on their pay and on the pay level, broken down by sex, for the category of workers doing the same work or work of equal value provided that this information has not already been communicated to the workers' representatives. Employers must inform workers of this right on an annual basis. Employers may also, on their own initiative, opt for providing such information without workers needing to request it.
Amendment 331 #
Proposal for a directive
Recital 25
Recital 25
(25) Employers with at least 250 workers should regularly report on pay, in a suitable and transparent manner, such as including the information in their management report. Companies subject to the requirements of Directive 2013/34/EU of the European Parliament and of the Council52 may also choose to report on pay alongside other worker-related matters in their management report. _________________ 52 Directive 2013/34/EU, as amended by Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 as regards disclosure of non- financial and diversity information by certain large undertakings and groups (OJ L 330, 15.11.2014, p. 1).
Amendment 339 #
Proposal for a directive
Recital 26
Recital 26
(26) Pay reporting should allow employers to evaluate and monitor their pay structures and policies, allowing them to proactively comply with the principle of equal pay. At the same time, the gender- disaggregated data should assist competent public authorities, workers’ representatives and other stakeholders to monitor the gender pay gap across sectors (horizontal segregation) and functions (vertical segregation). Employers may wish to accompany the published data by an explanation of any gender pay differences or gaps. In cases where differences in average pay for the same work or work of equal value between female and male workers cannot be justified by objective and gender-neutral factors, the employer should take measures within a reasonable time to remove the inequalities.
Amendment 357 #
Proposal for a directive
Recital 29
Recital 29
(29) Joint pay assessments should trigger the review and revision of pay structures in organisations with at least 250 workers that show pay inequalities. The joint pay assessment should be carried out by employers in cooperation with workers’ representatives; if workers’ representatives are absent, they should be designated for this purpose. Joint pay assessments should lead, within a reasonable time, to the elimination of gender discrimination in pay in particular through the adoption of remedial measures where relevant.
Amendment 367 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29a) Member States, without prejudice to the autonomy of the social partners, shall take appropriate measures to ensure that the workers’ representatives and trade unions have a right to be consulted, at an appropriate level, on measures to address the pay discrimination, particularly with regard to women and any other measures that aim to reduce the gender pay gap. Such measures may include development and application of evaluation and classification systems for jobs, which are free of pay discrimination with the participation of workers’ representatives and trade unions.
Amendment 416 #
Proposal for a directive
Recital 41
Recital 41
Amendment 441 #
Proposal for a directive
Recital 48
Recital 48
(48) In order to ensure proper monitoring of the implementation of the right to equal pay between men and women for the same work or work of equal value, Member States should set up or designate a dedicated monitoring body. This body, which may be part of an existing body pursuing similar objectives, should have specific tasks in relation to the implementation of the pay transparency measures foreseen in this Directive and gather certain data to monitor pay inequalities and the impact of the pay transparency measures. Member States should ensure the monitoring body has adequate resources in order to fulfil its tasks.
Amendment 465 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive lays down minimum requirements to strengthenestablishes a framework to promote the application of the principle of equal pay between men and women for equal work or work of equal value enshrined in Article 157 TFEU and the prohibition of discrimination laid down in Article 4 of Directive 2006/54/EC, in particular through pay transparency and reinforced enforcement mechanisms.
Amendment 479 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. This Directive applies to all workers who have an employment contract or employment relationship as defined by law, collective agreements and/or practice in force in each Member State with consideration to the case-law of the Court of Justice.
Amendment 503 #
Proposal for a directive
Article 3 – paragraph 1 – point g
Article 3 – paragraph 1 – point g
(g) ‘category of workers’ means workers performing the same work or work of equal value grouped by the workers’ employer based on criteria as laid down in Article 4 of this Directive and specified by the employer concernedwho are grouped by the workers’ employer with respect to applicable law, collective agreement or other provisions in each Member State with regard to workers performing the same work or work of equal value;
Amendment 516 #
Proposal for a directive
Article 3 – paragraph 1 – point i a (new)
Article 3 – paragraph 1 – point i a (new)
(ia) ‘workers’ representatives’ means trade unions or workers’ representatives according to national law and practices;
Amendment 540 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. 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. performed at the same employer
Amendment 554 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Member States shall take the necessary measures ensuring that tools or methodologies are established to assess andogether with social partners take appropriate measures ensuring adequate guidance to assess and when possible compare the value of work in line with the criteria set out in this Article. These tools or methodologierecommendations may include gender-neutral job evaluation and classification systems.
Amendment 561 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The tools or methodologies shall allow assessing, in regard to the value of work, whether workers are in a comparable situation, on the basis of objective criteria which shall include. Those criteria shall be agreed with the social partners and shall include, for instance : (a) educational, professional and training requirements,; (b) skills, effort and responsibility,including the knowledge necessary to meet the requirements of a job, interpersonal skills and problem solving; (c) responsibility, including for people, goods and equipment, information and financial resources; (d) work undertaken and; (e) the nature of the tasks involved. They shall not contain or be based on criteria which are based, whether directly or indirectly, on workers’ sex.
Amendment 581 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Whenever differences in pay can be attributed to a single source establishing the pay conditions, the assessment whether workers are carrying out the same work or work of equal value shall not be limited to situations in which female and male workers work for the same employer but may be extended to that single source. The assessment shall also not be limited to workers employed at the same time as the worker concerned. Where no real comparator can be established, a comparison with a hypothetical comparator or the use of other evidence allowing to presume alleged discrimination shall be permitted such as a reference to an existing classification based on social partners’ collective agreements at branch or at sector level.
Amendment 598 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Applicants for employment who enter the final stage of recruitment shall have the right to receive from the prospective employer information about the initial pay level or itspay range, based on objective, gender- neutral criteria, to be attributed for the position concerned. Such information shall be indicated in a published job vacancy notice or otherwise provided to the applicant prior to the job interview without the applicant having to request it.
Amendment 624 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
The employer shall make easily accessible to its workers a description of the criteria used to determine pay levels and career progression for workers. These criteria shall be gender-neutral.
Amendment 636 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Workers whose employer employs at least 50 workers shall have the right to receive 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, in accordance with paragraphs 3 and 4 provided that this information has not already been communicated to the workers' representatives.
Amendment 641 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Workers shall have the right to receive information on their individual pay level and the average pay levelspay gap and median pay gap, broken down by sex, for categories of workers doing the same work as them or work of equal value to theirin the employer´s operations, in accordance with paragraphs 3 and 4.
Amendment 655 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Employers shall provide the information referred to in paragraph 1 within a reasonable period of time upon a worker’s request. The information shall be provided only if it does not reveal information about wage levels of an individual worker and in accessible formats for workers with disabilities upon their request.
Amendment 678 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. EMember States shall introduce adequate measures, with regard to national labour market traditions, to ensure that employers with at least 250 workers shall provide the followingmonitor and provide information concerning their organisation, in accordance with paragraphs 2, 3, and 5:pay gap between female and male workers for different categories of workers that conducts the same work as them or work of equal value for the same employer.
Amendment 683 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. Employers with at least 250 workers shall provide the following information concerning their organisation, in accordance with paragraphs 2, 3, and 5:
Amendment 715 #
Proposal for a directive
Article 8 – paragraph 1 – point f
Article 8 – paragraph 1 – point f
Amendment 722 #
Proposal for a directive
Article 8 – paragraph 1 – point g a (new)
Article 8 – paragraph 1 – point g a (new)
(ga) the proportion of female workers who benefited from a pay rise following their return from maternity leave.
Amendment 731 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. Employers shall provide the information referred to in paragraph 1 by ... [2 years after the entry into force of this Directive] and thereafter as follows: (i) for employers with 50 to 250 workers, every two years; (ii) for employers with at least 250 workers, every year.
Amendment 749 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
3. The employer shall publish the information referred to in paragraph 1, points (a) to (fe) on an annual basis in a user-friendly way on its website or shall otherwise make it publicly available. The information from the previous four years, if available, shall also be accessible upon request. In addition, the employer shall share this information with the monitoring body referred to in paragraph 6.
Amendment 768 #
Proposal for a directive
Article 8 – paragraph 5
Article 8 – paragraph 5
5. The employer shall provide the information referred to in paragraph 1, point (g) and point (g a) to all workers and their representatives, as well as to the monitoring body referred to in paragraph 6. It shall provide it to the labour inspectorate and the equality body upon their request. The information from the previous four years, if available, shall also be provided upon request.
Amendment 776 #
Proposal for a directive
Article 8 – paragraph 6
Article 8 – paragraph 6
6. Member States shall entrust the monitoring body designated pursuant to Article 26 to collect the data received from employers pursuant to paragraph 1, points (a) to (fe) and to ensure that this data is public and allows a comparison between employers, sectors and regions of the Member State concerned in a user-friendly way.
Amendment 786 #
Proposal for a directive
Article 8 – paragraph 7
Article 8 – paragraph 7
7. Workers and their representatives, labour inspectorates and equality bodies shall have the right to ask the employer for additional clarifications and details regarding any of the data provided, including explanations concerning any gender pay differences. The employer shall respond to such request within a reasonable time by providing a substantiated reply. Where gender pay differences are not justified by objective and gender-neutral factors, the employer shall remedy the situation within a reasonable time in close cooperation with the workers’ representatives, the labour inspectorate and/or the equality body.
Amendment 804 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States shall take appropriate measures to ensure that employers with at least 250 workers conduct, in cooperation with their workers’ representatives, a joint pay assessment where both of the following conditions are met:
Amendment 852 #
Proposal for a directive
Article 9 – paragraph 4
Article 9 – paragraph 4
4. If the joint pay assessment reveals differences in average pay for equal work or work of equal value between female and male workers which cannot be justified by objective and gender-neutral criteria, the employer shall remedy the situation within a reasonable time, in close cooperation with the workers’ representatives, labour inspectorate, and/or equality body. Such action shall include the establishment of gender-neutral job evaluation and classification to ensure that any direct or indirect pay discrimination on grounds of sex is excluded.
Amendment 880 #
Proposal for a directive
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)
Amendment 917 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Member States shall take the appropriate measures, in accordance with their national judicial systems, to ensure that, when workers who consider themselves wronged because the principle of equal pay has not been applied to them, establish before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the defendant to prove that there has been no direct or indirect discrimination in relation to pay.;
Amendment 919 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Member States shall ensure that, in any legal or administrative proceedings concerning direct or indirect discrimination, where an employer failed to comply with any of the rights or obligations related to pay transparency set out in Articles 5 through 9 of this Directive, it shall be for the employer to prove that there has been no such discrimination.;
Amendment 940 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
3. Member States shall ensure that the limitation periods for bringing claims are set at three years at leastin accordance with national labour market practice and established case law.
Amendment 951 #
Proposal for a directive
Article 19
Article 19
Amendment 959 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
Claimants who prevail on a pay discrimination claim shall have the right to recover from the defendant, in addition to any other damages, reasonable legal and experts’ fees and costs. Defendants who prevail on a pay discrimination claim shall not have the right to recover any legal and experts’ fees from the claimant(s) and costs, unless the claim was brought in bad faith, was clearly frivolous or where such non-recovery is considered manifestly unreasonable under the specific circumstances of the case.;
Amendment 969 #
Proposal for a directive
Article 20 – paragraph 2 – introductory part
Article 20 – paragraph 2 – introductory part
2. Member States shall ensure that fines are applied to infringements of the rights and obligations relating to equal pay for the same work or work of equal value. They shall set a minimum level for such fines ensuringbased, for instance, on the employer’s gross annual turnover or on the employer’s total payroll and shall ensure that that minimum level is proportionate and has a real deterrent effect. The level of the fines shall take into account:
Amendment 1021 #
Proposal for a directive
Article 26 – paragraph 2 a (new)
Article 26 – paragraph 2 a (new)
2a. Member States shall ensure the monitoring body has adequate resources in order to fulfil its tasks.
Amendment 1071 #
Proposal for a directive
Article 30 – title
Article 30 – title
Implementation and deviations through collective agreements
Amendment 1075 #
Proposal for a directive
Article 31 – paragraph 1
Article 31 – paragraph 1
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [twofour years after the entry into force]. They shall immediately inform the Commission thereof.