Everyone is agreed that the principle of ‘equal pay for equal work’ must form the basis of our Belgian labour law. But, the average woman today still earns 11.5% less than the average man, even if the effect is offset by the fact that more women work part-time, have had different basic training, often end up in less-well-paid sectors and occupations, make sacrifices for their families and less easily progress into certain positions.
The Act of 22 April 2012 is intended to get to grips with this so-called pay gap. A symbolic act indeed for parliament, which adopted this “Act to combat the wage gap between men and women”on no less a day than International Women’s Day, 8 March 2012.
The Act was published in Belgium’s official journal on 28 August 2012 and comes into force on7 September 2012.
The aim of the legislation is to render the pay gap visible and open it up to discussion at every level, though, yet again, it is businesses that are saddled with a range of additional (administrative) obligations.
(i) Inter-professional level
Developments in the pay gap will form a permanent agenda item at the bi-annual IPA negotiations.
(ii) Sector level
Joint committees are obliged to have their functional classifications screened by the Federal Public Service Work. Notably, the valuation of typical male positions and the undervaluation of certain female skills result in many existing functional classifications being discriminatory. If joint committees fail to make their functional classifications sex-neutral within a period of two years, they may be penalised.
(iii) Company level
Employers are faced with three new measures:
(a) Employment balance sheet
In future, all companies must do a split of the following data according to sex in their employment balance sheet unless the number of workers involved is 3 or less:
the average number of full-time and part-time employees and the total number of full-time equivalents;
the number of hours worked by full-time and part-time workers and the total number of hours worked;
the personnel costs of full-time and part-time workers and the total personnel costs;
the total benefits on top of the wages.
(b) Bi-annual reporting on the company’s pay structure for businesses with over 50 workers
Employers with over 50 employees must report on the pay structure within their businesses.
Every two years, a detailed analysis has to be done of the pay structure within the company on the basis of a standard form that will be issued by the Federal Public Service Work.
The return has to include information on the following pay components:
wages and direct employment benefits;
employer contributions to non-statutory insurance schemes;
other non-statutory benefits.
This information must in each case be split according to sex and reported according to a division based on:
work status (blue-collar, white-collar, management);
level of qualifications or training.
The employer has to send the return to the works council, failing which the health and safety at work committee (HSWC). On the basis of the return, the works council or HSWC will examine whether the company has a sex-neutral pay policy and, if this appears not to be so, will judge whether it is desirable for the company to drawn up an action plan so as to resolve the issues.
The action plan contains:
the areas for action and the instruments for achieving them;
the achievement deadline;
a system for monitoring execution.
If an action plan is set up, the next return has to report progress in executing the plan.
An employer that fails to prepare a return or action plan is liable to a criminal penalty . The legislator inserted the criminal penalties by mistake in a legal provision which was recently abolished by the Social Criminal Code, a compilation of all criminal provisions in employment law. As a result, the criminal penalties in principle do not apply, as long as the legislator does not correct this error.
Finally, the Act provides that, on a proposal by the works council or the HSWC (i.e. only in firms with over 50 workers), the employer can appoint a member of staff as a mediator. Contrary to what has been reported in other media, it is not therefore an automatic requirement to appoint a mediator.
The post of mediator is inspired by the post of confidant in the context of mobbing in the workplace.
The mediator supports the employer is preparing the action plan and progress reporting. He/she is also the person with whom employees who feel themselves discriminated against can raise the issue of pay equality. It is the mediator’s job to avoid potential conflicts from escalating, by investigating complaints and trying to bring about a solution by approaching the employer in an informal, anonymous manner. The mediator acts entirely autonomously and, in order to carry out his/her duties must be given access to all necessary information, such as employment documents and pay slips. Employers that block mediators in their work risk criminal and/or administrative penalties. Again, these criminal penalties will not apply without a rectification trough the Social Criminal Code.
A royal decree will offer further clarification on matters such as the powers, requisite skills and status of mediators.