61 Amendments of José GUSMÃO related to 2021/0050(COD)
Amendment 335 #
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 355 #
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 workersany undertaking that shows 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 purposeor freely elected for this purpose either by trade unions or members of such unions, or by the workers of the undertaking in accordance with provisions of national laws or regulations of collective agreements. Joint pay assessments should lead to the elimination of gender discrimination in pay.
Amendment 413 #
Proposal for a directive
Recital 40
Recital 40
(40) In accordance with the case-law of the Court, national rules on time limits for the enforcement of rights under this Directive should be such that they cannot be regarded as capable of rendering virtually impossible or excessively difficult the exercise of those rights. Limitation periods create specific obstacles for victims of gender pay discrimination. For that purpose, common minimum standards should be established. Those standards should determine when the limitation period begins to run, the duration thereof and the circumstances under which it is interrupted or suspended and provide that the limitation period for bringing claims is at least threfive years.
Amendment 498 #
Proposal for a directive
Article 3 – paragraph 1 – point f a (new)
Article 3 – paragraph 1 – point f a (new)
(fa) ‘work of equal value’ means work that is determined to be of equal value in accordance with non-discriminatory and objective gender-neutral criteria as set out in Article 4(3).
Amendment 501 #
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 concerned in consultation with workers’ representatives;
Amendment 507 #
Proposal for a directive
Article 3 – paragraph 1 – point g a (new)
Article 3 – paragraph 1 – point g a (new)
(ga) ‘workers' representatives’ means: (a) trade union representatives, namely, representatives designated or elected by trade unions or by members of such unions in accordance with national legislation and practice; (b) elected representatives, namely, representatives who are freely elected by the workers of the undertaking, not under the domination or control of the employer in accordance with provisions of national laws or regulations or of collective agreements and whose functions do not include activities which are the exclusive prerogative of trade unions; Where there exist (according to national law and practice) in the same undertaking both trade union representatives and elected representatives, appropriate measures shall be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned or their representatives, ensuring their exclusive prerogatives and rights as well as workers' right to organise in a trade union and to collective bargaining.
Amendment 513 #
Proposal for a directive
Article 3 – paragraph 1 – point i
Article 3 – paragraph 1 – point i
(i) ‘indirect discrimination’ means the situation where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim in accordance with the criteria laid down in article 4, and the means of achieving that aim are appropriate and necessary;
Amendment 515 #
Proposal for a directive
Article 3 – paragraph 1 – point i a (new)
Article 3 – paragraph 1 – point i a (new)
(ia) “intersectional discrimination” refers to discrimination on the basis of two or more grounds or characteristics or identities which operate and interact with each other at the same time in such a way as to be inseparable, producing distinct and specific forms of discrimination;
Amendment 520 #
Proposal for a directive
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1a. For the purposes of the principle of equal pay for equal work or work of equal value: a) the comparison is between a job carried out by a man and a woman; b) in circumstances when a person identifies as neither a man or a woman, the comparison is with the person that, carrying out equal work or work of equal value, has the highest pay.
Amendment 531 #
Proposal for a directive
Article 4 – paragraph -1 (new)
Article 4 – paragraph -1 (new)
-1. Member States shall clarify the concept of ‘work of equal value’ in national law, in accordance with the case law of the Court and point 10 of Recommendation 2014/124/EU, basing the value of work on objective, gender neutral criteria in accordance with paragraph 3 of this article.
Amendment 547 #
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 toand are easily accessible to workers and employers for the purpose of assessing and compareing the value of work in line with the criteria set out in this Article. These tools or methodologies mayshall be established with the involvement of social partners and the support of equality bodies, and shall include gender-neutral job evaluation and classification systems.
Amendment 560 #
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 gender- neutral criteria which shall include educational, professional and training requirements, skills, effort and responsibility, work undertakould include aspects of jobs carried out predominantly by women that are frequently overlooked. Those criteria shall include but not be limited to: a) educational, professional and training requirements, acquired learning and knowledge; b) skills, including experience, interpersonal skills, problem solving, judgement and the nature of the tasks involved. They shall not organisational skills; c) effort, including mental, emotional, psycho-social and physical effort; d) accountain or be based on criteria which are based, whether directly or indirectly, on workers’ sex. bility and responsibility, including for people, goods and equipment, information and financial resources; e) working conditions, including those relating to the working environment (physical, psychological and emotional) and the organisational environment.
Amendment 580 #
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 or in the same sector as the worker concerned. Where no real comparator can be established, a comparison with a hypothetical comparator on the basis of the criteria referred to in paragraph 3 or the use of other evidence allowing to presume alleged discrimination shall be permitted. The hypothetical comparator shall facilitate cross-sectoral comparisons.
Amendment 587 #
Proposal for a directive
Article 4 – paragraph 5
Article 4 – paragraph 5
5. Where aMember States shall ensure that employers and workers' representatives are provided with the necessary tools and guidance to introduce gender-neutral job evaluation and classification system is useds for determining pay, it shall be based on the same criteria for both men and women and drawn up so as to exclude any discrimination on grounds of sex. Such job evaluation and classification systems shall be based on gender-neutral criteria drawn up so as to exclude any discrimination on grounds of sex and ensure that skills associated with female dominated jobs are not undervalued.
Amendment 592 #
Proposal for a directive
Article 5 – paragraph -1 (new)
Article 5 – paragraph -1 (new)
-1. Employers shall ensure that vacancy notices, job titles and recruitment processes are gender neutral.
Amendment 595 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Applicants for employment shall have the right to receive from the prospective employer information about the initial pay level or its 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. In addition, and also prior to the job interview, the applicant for employment shall receive upon request information on the average pay level for categories of workers performing the same work as the advertised position or work of equal value to that position and the objective, gender-neutral criteria on which the average pay level is based.
Amendment 618 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
The employer shall make easily accessible to its workers and workers’ representatives a description of the criteria used to determine pay levels and career progression for workers. These criteria shall be gender-neutral in line with the ones laid down in Article 4.
Amendment 629 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Workers shall have the right to receive clear and complete 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. This information shall include also how pay levels were determined, including through an existing job evaluation or job classification scheme. Workers’ representatives shall also have the right to receive information on how pay for each category of worker is laid down.
Amendment 648 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Employers shall inform all workers, on an annual basis, of their right to receive the information referred to in paragraph 1, and on the steps the worker should undertake to make use of their right.
Amendment 651 #
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 requestone month upon a worker’s request. The information shall be provided in writing and the employer shall retain proof of transmission or receipt, in electronic form. The information shall be provided in accessible formats for workers with disabilities upon their request.
Amendment 656 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Workers shall have the possibilityright to request the information referred to in paragraph 1 through their representatives or an equality body, in order to guarantee confidentiality and anonymity. Workers shall, personally or through their workers’ representatives, have the right to request additional clarifications and details regarding any of the data provided, and receive a substantiated reply. Workers’ representatives, including trade unions, shall have the possibility to request information on pay level on behalf of a worker, broken down by sex and categories of workers.
Amendment 666 #
Proposal for a directive
Article 7 – paragraph 5
Article 7 – paragraph 5
5. Workers shall not be prevented, under any circumstances, from disclosing their pay for the purpose of enforcing the principle of equal pay between men and women for equal work or work of equal valuto other workers and communicating it to their trade union. Member States shall thus put in place measures to prohibit contractual terms aiming to restrict workers from disclosing that information for the purposes of this Directive.
Amendment 668 #
Proposal for a directive
Article 7 – paragraph 6
Article 7 – paragraph 6
Amendment 685 #
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 723 #
Proposal for a directive
Article 8 – paragraph 1 – point g a (new)
Article 8 – paragraph 1 – point g a (new)
(ga) the average pay levels by category of workers broken down by gender.
Amendment 727 #
Proposal for a directive
Article 8 – paragraph 1 – point g b (new)
Article 8 – paragraph 1 – point g b (new)
(gb) information on the criteria used to determine pay.
Amendment 737 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The accuracy of the information shall be confirmed by the employer’s management and workers’ representatives. Employers shall consult with workers’ representatives on the methods used to calculate the pay gap, median pay gap and average pay levels.
Amendment 758 #
Proposal for a directive
Article 8 – paragraph 4
Article 8 – paragraph 4
4. Member States shall provide support, technical assistance and training, in particular for microenterprises and small and medium-sized enterprises, to comply with the obligations pursuant to this Article. Member States may decide to compile the information set out in paragraph 1, points (a) to (f) themselves, on the basis of administrative data such as data provided by employers to the tax or social security authorities. This information shall be made public in accordance with paragraph 6.
Amendment 765 #
Proposal for a directive
Article 8 – paragraph 5
Article 8 – paragraph 5
5. TWith the same frequency as that laid down in paragraph 3, the employer shall provide the information referred to in paragraph 1, point (g) to all workers and their representatives, as well as to the monitoring body referred to in paragraph 6. It shall also provide it to the labour inspectorate, trade unions and the equality body upon their request. The information from the previous four years, if available, shall also be provided upon request.
Amendment 779 #
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 in close cooperation with the workers’ representatives, the labour inspectorate and/or the equality body. Employers, workers’ representatives and the equality body shall take into account and address any additional forms of discrimination and unconscious bias.
Amendment 791 #
Proposal for a directive
Article 8 – paragraph 7 a (new)
Article 8 – paragraph 7 a (new)
7a. The implementation of the Directive shall not be used to reduce existing reporting obligations on employers.
Amendment 806 #
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 813 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(a) the pay reporting conducted in accordance with Article 8 demonstrates a difference of average pay level between female and male workers of at least 5 per cent in any category of workers;
Amendment 831 #
Proposal for a directive
Article 9 – paragraph 2 – point e
Article 9 – paragraph 2 – point e
(e) measuresa Gender Action Plan to address such differences if they are not justified on the basis of objective and gender-neutral criteria. This Gender Action Plan shall be elaborated in consultation with workers’ representatives, and supported where possible by equality bodies. It may include examining the causes of the pay gap from recruitment, promotion, occupational segregation, flexibility and care responsibilities and measures to address the gender gaps. Where applicable, the Gender Action Plan shall be included in the management report drawn up pursuant to Directive 2013/34/EU;
Amendment 837 #
Proposal for a directive
Article 9 – paragraph 2 – point f
Article 9 – paragraph 2 – point f
(f) a monitoring report on the effectiveness of any measures mentioned in previous joint pay assessmentthe Gender Action Plan and review mechanisms.
Amendment 844 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Employers shall make the joint pay assessments available in easily accessible formats to workers, workers’ representatives, the monitoring body designated pursuant to Article 26, the equality body and the labour inspectorate.
Amendment 861 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. To the extent that any information provided pursuant to measures taken under Articles 7, 8, and 9 involves the processing of personal data, it shall be provided in accordance with Regulation (EU) 2016/679. Compliance with this Regulation shall not be used as a reason to deny any information necessary for the enforcement of rights and obligations related to the principle of equal pay between men and women for equal work or work of equal value.
Amendment 871 #
Proposal for a directive
Article 11 – title
Article 11 – title
Amendment 872 #
Proposal for a directive
Article 11 – paragraph -1 (new)
Article 11 – paragraph -1 (new)
-1 Member States shall ensure that measures to address pay discrimination and the undervaluation of work predominantly carried out by women, as well as other measures aimed at closing the gender pay gap, are discussed at the appropriate level of collective bargaining with the involvement of trade unions. Such measures shall include the development and use of job evaluation and classification systems free from gender bias.
Amendment 876 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Without prejudice to the autonomy of social partners and in accordance with national law and practice, Member States shall ensure that the rights and obligations under this Directive are discussedtransposed, implemented and monitored in full consultation with social partners.
Amendment 897 #
Proposal for a directive
Article 13 – paragraph 2 a (new)
Article 13 – paragraph 2 a (new)
2a. Trade unions shall also have the right to act on behalf of a class of workers in a particular sector or category.
Amendment 899 #
Proposal for a directive
Article 13 – paragraph 2 b (new)
Article 13 – paragraph 2 b (new)
2b. Member states shall reduce procedural obstacles to the bringing of equal pay cases to the court.
Amendment 903 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. The compensation or reparation referred to in paragraph 1 shall ensure real and effective compensation for the loss and damage sustained, in a way which is dissuasive and proportionate to the damage suffered. Where gender-based pay discrimination intersects with additional grounds of discrimination, the compensation or reparation shall be adjusted accordingly.
Amendment 914 #
Proposal for a directive
Article 15 – paragraph 2 a (new)
Article 15 – paragraph 2 a (new)
The structural or organisational measures referred to in the first paragraph, point (b), may include an obligation to review the pay-setting mechanism based on gender-neutral job evaluation or classification systems, the establishment of an action plan to eliminate the discrepancies discovered, and measures to reduce any unjustified gender pay gaps.
Amendment 944 #
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 threfive years at least.
Amendment 961 #
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 972 #
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 ensuringpercentage based on the employer’s gross annual turnover as a minimum level for such fines and shall ensure that minimum level is proportionate and has a real deterrent effect. The level of the fines shall take into account:
Amendment 978 #
Proposal for a directive
Article 20 – paragraph 2 – point c
Article 20 – paragraph 2 – point c
(c) any other aggravating or mitigating factor applicable to the circumstances of the case. such as where gender-based pay discrimination intersects with other grounds of discrimination, or relevant mitigating factors.
Amendment 994 #
Proposal for a directive
Article 21 – paragraph 2
Article 21 – paragraph 2
2. Member States shall consider for contracting authorities to introduce, as appropriate, penalties and termination conditions ensuring compliance with the principle of equal pay in the performance of public contracts and concessions. Where Member States’ authorities act in accordance with Article 38(7)(a) of Directive 2014/23/EU, Article 57(4)(a) of Directive 2014/24/EU, or Article 80(1) of Directive 2014/25/EU in conjunction with Article 57(4)(a) of Directive 2014/24/EU, they may exclude or may be required by Member States toshould exclude any economic operator from participation in a public procurement procedure where they can demonstrate by any appropriate means the infringement of the obligations referred to in paragraph 1, related either to a failure to comply with pay transparency obligations or a pay gap of more than 5 per cent in any category of workers which is not justified by the employer on the basis of objective, gender-neutral criteria. This is without prejudice to any other rights or obligations set out in Directive 2014/23/EU, Directive 2014/24/EU or Directive 2014/25/EU.
Amendment 1003 #
Proposal for a directive
Article 22 a (new)
Article 22 a (new)
Article 22 a Intersectionality 1. Member States shall ensure that in legal proceedings aiming to enforce the rights and obligations relating to equal pay for equal work or work of equal value, the courts, the equality bodies and other competent authorities duly assess the existence of other grounds of discrimination protected under Directives 2000/43/EC or 2000/78/EC and take due account of such discrimination for substantive and procedural purposes. 2. Member States, employers, workers' representatives, equality bodies and monitoring bodies designated pursuant to Article 26 shall, where possible, take into account the existence of intersectional forms of discrimination when implementing and reporting on pay transparency measures and develop and implement specific actions to identify and address situations in which gender-based pay discrimination intersects with other grounds of discrimination. They may also analyse and revise any practice or criteria that could be discriminatory and tackle and find solutions for the concerns of women facing intersecting forms of discrimination within a particular workplace or sector. 3. When collecting data received from employers, the equality bodies shall, where possible, analyse that data in a way that takes account of multiple and intersectional forms of discrimination.
Amendment 1008 #
Proposal for a directive
Article 25 – paragraph 2 a (new)
Article 25 – paragraph 2 a (new)
2 a. Member States shall take measures to ensure that the social partners, without prejudice to their autonomy, are given the possibility to be consulted with and involved in the operation of equality bodies.
Amendment 1020 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
2. Each Member State shall designate a tripartite body (‘monitoring body’) for the monitoring and support of the implementation of national legal provisions implementing this Directive and shall make the necessary arrangements and ensure adequate resources for the proper functioning of such body. The monitoring body may be part of existing bodies or structures at national level.
Amendment 1027 #
Proposal for a directive
Article 26 – paragraph 3 – point b
Article 26 – paragraph 3 – point b
(b) to tackle the causes of the gender pay gap and devise tools to help analyse and assess pay inequalitiesdevise tools, methodologies and guidance to help analyse and assess pay inequalities in order to tackle the causes of the gender pay gap;
Amendment 1034 #
Proposal for a directive
Article 26 – paragraph 3 – point c
Article 26 – paragraph 3 – point c
(c) to aggregate data received from employers pursuant to Article 8(6), and publish this data in an accessible and a user-friendly manner, including with regard to persons with disabilities, in accordance with Directive (EU) 2019/882 and, where possible, analyse that data for the purpose of identifying multiple and intersectional forms of discrimination;
Amendment 1038 #
Proposal for a directive
Article 26 – paragraph 3 – point c a (new)
Article 26 – paragraph 3 – point c a (new)
Amendment 1044 #
Proposal for a directive
Article 26 – paragraph 3 – point e a (new)
Article 26 – paragraph 3 – point e a (new)
(ea) to provide relevant data and information to the European Institute for Gender Equality in order to allow for the comparability and assessment of that data at Union level;
Amendment 1046 #
Proposal for a directive
Article 26 – paragraph 3 – point e b (new)
Article 26 – paragraph 3 – point e b (new)
(eb) to raise awareness of gender-based pay discrimination intersecting with various axes of discrimination such as racial or ethnic origin, religion or belief, disability, age or sexual orientation as protected under Directive 2000/43/EC or 2000/78/EC.
Amendment 1048 #
Proposal for a directive
Article 26 – paragraph 3 a (new)
Article 26 – paragraph 3 a (new)
3a. The monitoring body shall assist Member States in their efforts to combat the gender pay gap by providing guidance and sharing best practices on policies and methodologies to determine and compare work of equal value, including across sectors with a concrete focus on combating the systemic undervaluation of work in female dominated sectors and making full use, where appropriate of the data, knowledge and capacities of the European Institute for Gender Equality.
Amendment 1062 #
Proposal for a directive
Article 28 – paragraph 1
Article 28 – paragraph 1
Member States shall provide the Commission (Eurostat) with up-to-date gender pay gap data annually and in a timely manner. These statistics shall be broken down by gender, economic sector, working time (full-time/part-time), economic control (public/private ownership), disability and age and be calculated on an annual basis and, where possible, combine them with anonymised data regarding intersectional forms of discrimination.
Amendment 1080 #
Proposal for a directive
Article 31 – paragraph 2
Article 31 – paragraph 2
2. When informing the Commission, Member States shall also accompany it with a summary of the results of their assessment regarding the impact of their transposition act on workers and employers of microenterprises, small and medium- sized enterprises broken down by sectors, particularly female-dominated ones, and a reference to where such assessment is published.
Amendment 1088 #
Proposal for a directive
Article 32 – paragraph 1
Article 32 – paragraph 1
1. By [eightfive years after the entry into force] Member States shall communicate to the Commission all information on how this Directive has been applied and what has been its impact in practice.