CELEX: 51994DC0006
Language: en
Date: 1994-06-23 00:00:00
Title: MEMORANDUM ON EQUAL PAY FOR WORK OF EQUAL VALUE

ICOIVMISSION OF THE EUROPEAN COMMUNITIES
                          COM(94) 6   final
                          Brussels, 23.06.1994
                 MEMORANDUM
                ON EQUAL PAY
                  FOR WORK
               OF EQUAL VALUE
 ---pagebreak---                                  INTRODUCTION
The Third medium term Community action Programme for Equal Opportunities
between women and men     (1991-1995)    (1) which was the subject of the
Council Resolution of 21 May 1991 (2) provides that the Commission shall
     "adopt a Memorandum to define the scope and concept of equal pay for
     work of equal value and provide guidance on the criteria to be taken
     into account in job evaluation and job classification".
The   adoption  of  a Memorandum    was   recommended   as one   of  the  main
conclusions arising out of the Forum on Equal Pay Legislation in the
Member States organised by the Women's Rights Committee of the European
Parliament in March 1992.
The necessity and utility of such a document was emphasised during the
Equal Pay Seminar organised by the Belgian Presidency which took place on
25 and 26 October 1993.
This   Memorandum   is  offered   for   information    and  consideration   to
interested parties concerned with or involved in the equal pay issue,
such as appropriate government departments, national agencies having the
reponsibility    to . address   disputes,    social   partners,   lawyers   and
consultants. It does not contain formal proposals as such.
 ---pagebreak---                                CONTENTS
Part I:    BACKGROUND
Part II :  SUMMARY OVERVIEW  OF THE JURISPRUDENCE OF THE EUROPEAN COURT
           OF JUSTICE
Chapter 1: The meaning of work of equal value
           a)   the nature of work of equal value
           b)   the scope of comparison of work of equal value
Chapter 2: Job classification, Job Evaluation and Discrimination
           a)   job classification and job evaluation
           b)   job evaluation and classification and European Law
           c)   the implementation of pay structures
Chapter 3: Pay for the purposes of article 119 of the EC Treaty
           a)   basic and additional pay
           b)   contractual and non contractual pay
            c)  benefits
           d)   deferred benefits
            e)   social security benefits and pay
            f)  pay and other working conditions
            g)   total pay package v identifiable terms
 Part III:  THE NEED  FOR FURTHER MEASURES TO    PROMOTE THE   PRACTICAL
           ACHIEVEMENT OF EQUAL PAY FOR WORK OF EQUAL VALUE.
 ---pagebreak--- PART I : BACKGROUND
The principle of equal pay for men and women has been enshrined in
Community law from its origins. Article 119 of the EC Treaty requires
Member States to "ensure and subsequently maintain the application of the
principle that men and women should receive equal pay for equal work".
Article 119 of the EC Treaty was amplified by the Equal Pay Directive
75/117/EEC, which introduced the concept of equal pay for work of equal
value.
However, despite the existence of this Community legislation, which all
Member States have transposed into their national legislation, the
attainment of equal pay for women is not yet a reality. The overall pay
gap between women and men in the Community is still wide and, in some
cases, still widening due to economic difficulties which have tended to
affect women more severely than men.
Although there is an absence of adequate data for accurate wage
comparisons between men and      women throughout the Community, recent
 figures indicate   that women tend to work in significantly lower paid
 jobs than men . The differential in pay between men and women throughout
 the Member States of the European Community in 1990 is indicated in the
 following Table on the average value placed on women's work (3) :
 ---pagebreak---                            Manual (hourly)          Non-manual (monthly)
                            % of male rate          % of male rate
Belgium                     75.9                    64.6
Denmark                       -                     84.5
France                      80.8                    66.6
Germany                     73.2                    66.8
Greece                      76.3                    69.8
Ireland                     68.1
Italy                       82.7                    69.2
Luxembourg                  65.1                    54.9
Netherlands                 75.3                    65.5
Portugal                    71.6                    70.7
Spain                       71.9                    62.3
UK                          68.2                    54.2
The increasing participation of women in the labour market           (in 1991,
women   represented  40% of the total working population         in Community
countries) has not been accompanied by any major diversification as
regards the jobs they do and the sectors in which they work. Throughout
the   Community,  both  horizontal    and  vertical   segregation   remains   a
dominant feature of the structure of female employment.
The   effect  of  segregation   amplified   by the undervaluing     of   female
occupations   is  a  major   reason   for  the  persistance   of   significant'
disparities in wage levels.
Because of occupational segregation, job evaluation or classification
 schemes rarely compare men and women's work from a common standard. When
a   typical  woman's  job  is   compared with    a typical man's     job   in a
classification system, the factors considered and evaluated to calculate
the remuneration nearly always result in a higher wage for a typical
man's job than for a typical woman's job. Such a result is generally
obtained under a pre-established value system where more points are given
to i.e. physical strength, responsability vis-à-vis capital investment
more   than  vis-à-vis  human    beings,  training   rather  than   to   skills
necessary to perform the job, dexterity etc .
 ---pagebreak--- Obviously, reclassification of undervalued female work will not address
discrimination in all its guises, since the classification of jobs does
not ultimately determine pay rates.
The discrepancies between women and men's pay among Member States arise
as well from the variations in employment structures and reward systems.
Differentials are affected by a number of factors including the extent
and nature of atypical work as a proportion of "full-time" employment,
governmental wage policies, and arrangements    for collective bargaining.
Indeed, collective agreements often perpetuate women's difficulties in
getting access to additional payments and benefits through negotiations,
particularly at local levels. Additional allowances       for unfavourable
working conditions and attendance, for example, remain almost exclusively
the preserve of male occupations.
In the light of the framework outlined above, horizontal and vertical
segregation   on  the   labour  market    are   intrinsically   linked   to
discrimination in pay. In order to break what appears to be a self-
perpetuating cycle of discrimination on the labour market,        it would
appear necessary to develop a strategy to combat both pay discrimination
and segregation which are the major obstacles to more flexibility on the
labour market. In today's context, the reasons for pursuing such an issue
are not only based on equity but on the necessity of ensuring that proper
recognition is given to everyone's   skills and contribution to a changing
economy. In concrete terms, the concept of equal pay for work of equal
value means that where a woman undertakes work as demanding as a man's,
even though the work is different, she should receive the same pay and
benefits  unless  there  is  a  non-discriminatory    explanation  for  the
differential.
The Community's legal provisions on equal pay for work of equal value and
the  jurisprudence  pertaining   thereto  address   questions  of  a  quite
complex nature.
 ---pagebreak--- There is a clear need for clarification or refinement of the principle of
equal pay for work of equal value, so that individuals may rely on it and
national   courts  and  tribunals  may  apply    it   satisfactorily.  This
Memorandum is offered as a contribution to that clarification/refinemment
process. The core of the document is in Part II, which follows. It
comprises an overview of the jurisprudence of the European Court of
Justice   and   covers  the  meaning   of   work    of  equal   value,  job
classification, job evaluation and discrimination and definition of pay.
Part III briefly addresses the need for further measures to promote the
practical achievement of equal pay for work of equal value and mentions
possible elements of a broad strategy towards that end.
 ---pagebreak---                                       8
PART II :     SUMMARY OVERVIEW OF THE JURISPRUDENCE OF THE EUROPEAN COURT
              OF JUSTICE
Chapter 1 ; The Meaning of Work of Equal Value
a)   The Nature of Work of Equal Value
     The principle of equal pay for work of equal value is intended to
     redress the undervaluing of jobs undertaken primarily by women, in
     particular, where they are found to be as demanding as different jobs
     more usually undertaken    by men (4) . The concept contemplates the
     comparison of radically different jobs. Despite the articulation of
     the principle at Community level in the equal pay directive in 1975
     it remains the case that there has been no litigation in this area
     in a number of Member States (France, Luxembourg, Greece, Italy).
     In other Member States, there has been little litigation in which
     different   jobs  have  actually   been compared.  The  facts  of the
     published cases reveal that the claims often involve the comparison
     of jobs having different job titles but that the duties are almost
     identical, save for minor or insignificant differences in tasks.
     The legislation of a number of Member States fails to assist in the
     recognition of the scope of the principle since the laws contain
     either no definition or no clarification of it (Luxembourg, Italy,
     Belgium,   Spain, Greece, Portugal).    In addition, the   failure to
     include the concept of indirect discrimination in the prohibition
     against dicrimination in legislation      (Greece), contributes to a
     limited perception of the equal pay principle.
     The use by some     courts  in equal pay    claims  of tests  such as
     "manifestly discriminatory" implies a restriction of the equal pay
     principle to work which is identical or at least similar.
 ---pagebreak---      Such a test was used by courts in Italy, though it remains      to be
     seen  whether   this  will  continue  to   be  the  case,  given  the
     introduction of the concept of indirect discrimination in legislation
     passed in April 1991.
     By     contrast,  legislation   in  France,   Germany,  Ireland,  the
     Netherlands and the United Kingdom contains either definitions of
     equal value or guidance on how to approach such claims. All of the
     definitions assess the determination of work of equal value by
     reference to the nature and demands of actual work. The approach set
     out in the provisions of these Member States defines the principle
     of equal pay for work of equal value as contemplated at a European
     level. The European Court of Justice* has held on several occasions
     that the determination of equal value involves a comparison of the
     work of the female and her male comparator by reference to the
     demands of the work undertaken and the nature of the tasks.
     In the infringement proceedings against the United Kingdom (5), the
     Court considered that the concept of      'equal value' was not too
     "abstract" to be applied by the Court but held that:
       "the implementation of the Directive implies that the assessment of
       the "equal value" to be "attributed"     to particular work may be
       effected notwithstanding the employer's wishes, if necessary in the
       context of adversary proceedings. The Member States must endow an
       authority with the requisite jurisdiction to decide whether work
       has the same value as other work, after obtaining such information
       as may be required".
* Hereinafter refered to as "the Court"
 ---pagebreak---                                 10
Addressing a claim concerning the "same work", the Court held in
McCarthy Ltd v Wendy Smith (6):
  "in cases of actual discrimination falling within the scope of the
  direct application of Article 119 of the EC Treaty, comparisons are
  confined to parallels which may be drawn on the basis of concrete
  appraisals of the work actually performed by employees of different
  sex within the same establishment or service".
In Gisela Rummler v Dato Druck GmbH (7), the Court, in considering
whether a classification scheme might be discriminatory on grounds
of gender, ruled that the "nature of the tasks involved in the work
to be performed" should be capable of measurement by a scheme.
Considering the finding of an Equality Officer in Murphy and others
v Bord Telecom Eireann     (8), a reference from the High Court in
Ireland, the Court held that where the work had been assessed as more
onerous and therefore of higher value, Article 119 of the EC Treaty
prohibited the payment of iower wages. The jobs compared by the
Equality Officer in the Murphy case were different and the mechanism
 for comparing the jobs was by assessment of the nature of the tasks
and the demands made upon the workers in carrying out these tasks
such as skill, effort, responsibility etc.
Since it is the nature of the work which is important in assessing
whether equal work is undertaken by the woman and the man, other
 factors will not be relevant to that assessment. The European Court
 of Justice   found,  in effect, in Jenkins    v Kingsgate   (Clothing
 Productions) LTD (9), that the fact that Ms Jenkins worked part-time
 did not change the nature of the demands of the job.
Thus, for the period of time the work was undertaken she was entitled
 to be paid at the same rate as her full-time male comparator unless
 the  difference  in pay   was  attributable  to  factors  which  were
 objectively   justified  and   were   in  no  way   related   to  any
discrimination based on sex.
 ---pagebreak---                                 11
In Nimz v Freie und Hansestadt Hamburg (10), addressing the question
of whether seniority could justify a pay differential, the Court held
that :
 "Article 119 of the EEC Treaty must be interpreted as precluding a
  collective   agreement, entered into within the national public
  service, from providing for the period of service of employees
 working at least three-quarters of normal working time to be fully
  taken into account for reclassification in a higher salary grade,
 where only one-half of such period of service is taken into account
  in the   case of employees whose working hours are between one-half
  and three-quarters of those normal    working hours and the latter
  group of employees comprises a considerably smaller percentage of
 men     than    women, unless the employer can prove that such a
  provision is justified by factors whose objectivity depends in
  particular on the relationship between the nature of the duties
  performed and the experience afforded by the performance of those
  duties   after   a  certain  number  of  working  hours  have  been
  completed."
Member States have different mechanisms for resolving individual
claims concerning equal pay for work of equal value. Each of the
mechanisms applied includes the consideration of the nature and
demands of the different jobs compared to determine whether they
are of equal value:
1)   In Belgium,    France, Italy and Luxembourg many problems    are
     resolved by "work inspectorates". Courts required to resolve a
     question   are "not necessarily bound by the     results  of job
     evaluation schemes".
2)   In the Netherlands, the question of whether work is of equal
     value is assessed on the basis of "a reliable system of job
     evaluation".
3)   Under Irish legislation, any dispute on the subject of equal pay
     can be referred to one of three Equality Officers.
 ---pagebreak---                                    12
b) The Scope of Comparison» of Work of Equal Value
   i.   Men and women
    One of the fundamental aims of Article 119 of the EC Treaty and of
     the Equal Pay Directive is "the elimination of all discrimination
     on grounds of sex". This presupposes comparisons between persons of
     the opposite sex. Comparisons cannot be made between persons of the
     same sex. However, Article 119 of the EC Treaty and the Directive
     do not preclude claims from men though the determining factor in
     equal pay claims is whether any differential is sex-based.
     European law is silent on who is entitled to choose the comparator
     for the purposes of an equal pay claim. However, it appears that in
     all Member States, it is the applicant who chooses the comparator.
     In a case before the Court of Appeal in the Netherlands, this
     approach did not exclude the court from introducing a further
     comparator in circumstances where it considered that the applicant
     had inadvertently omitted a more appropriate comparator and could
     not be expected to have had the necessary expertise to identify
     that particular person.
   ii. Comparisons can be made by public and private sector workers
     Both public and private sector employees can pursue claims in
     respect of equal pay.
     In Defrenne v Sabena II (11) the Court held that :
        "Courts have a duty to ensure the protection of the rights which
        this provision vests in individuals, in particular, as regards
        those types of discrimination arising directly from legislative
        provisions and collective labour agreements, as well as in cases
        in which men and women receive unequal pay for equal work which
        is carried out in the same establishment or service, whether
        public or private".
 ---pagebreak---                                    13
iii. Actual or Hypothetical Comparators
     Neither Article 119 of the EC Treaty nor Article 1 of the Equal Pay
     Directive specify any requirement of an actual comparator of the
     opposite sex .
     In the case of McCarthys Ltd v Wendy Smith (12) , Ms Smith argued
     that  a female worker can rely on Article 119 of the EC Treaty in
     order to claim the pay to which she would be entitled if she were
     a man,   even  if  there  are or were   no male  employees  in the
     undertaking or service concerned who perform or performed the same
     work (the "hypothetical male worker" criterion). She was supported
     in her arguments by the Commission and by the Advocate-General.
     However, the Court     rejected Ms Smith's arguments on the basis
     that:
        "in cases of actual discrimination falling within the scope of
        the direct application of Article 119, comparisons are confined
        to parallels   which may be drawn on     the basis  of  concrete
        appraisals  of  the work   actually performed  by  employees  of
        different sex within the same establishment or service".
     Therefore, applying the principle of equal pay found in Article 119
     of the EC Treaty, the woman is required to show there is an actual
     man employed who receives or received more pay than the woman doing
     equal work for the employer.
     McCarthys rules that a hypothetical comparison cannot be made under
     Article 119 of the EC Treaty, in circumstances where it is alleged
     that the same work is being undertaken by the woman and the man.
     However, the Court's reluctance to allow a claim based on the
     "hypothetical comparator" was, after all, linked to its reluctance
     to accord direct effect to Article 119 of the EC Treaty in cases of
     disguised  and indirect discrimination    . As it has long since
     abandoned that reluctance, it may perhaps yield, in the future, to
     the arguments in favour of the "hypothetical male comparator".
 ---pagebreak---                                  14
 It must be pointed out that in another context (13 ) , the Court has
 already held that in cases of direct discrimination on the basis of
 the criterion of sex, the requirement for a male comparator to be
 adduced may even not apply.
iv.Contemporaneous employment
 The principle of equal pay for equal work is not confined to a
  situation where the woman undertakes equal work contemporaneously
 with the male comparator where it is established that she receives
  less  pay  than  her    predecessor    carrying  out  the  equal  work
  (McCarthys v Smith).
v.   Are Comparisons Restricted to the Same Establishment?
  It is clear that work compared for the purpose of          determining
  whether it is of equal value encompasses diverse jobs.
  Defrenne II makes it clear that comparisons for the purpose of
  determining  equal    work  are   at   least  possible  in  the  "same
  establishment".   It   is  not   clear   however  that  this  must  be
  understood    as    excluding      comparisons    between    different
  establishments within the same employment structure. Indeed, a
  restriction of this nature could easily defeat the purpose of the
  principle of equal pay for work of equal value given that women
  often work in different plants        from men employed by the same
  company.
  In Defrenne II, the Court gave a clear guide to the Member States
  on the implications of the complete implementation of Article 119
  of the EC Treaty and the Directive as it would affect
     "not only..individual undertakings but also entire branches of
     industry and even of the economic system as a whole, and may in
     certain  cases    involve   the   elaboration   of  criteria  whose
     implementation necessitates the taking of appropriate measures
     at Community and national level" (14)
 ---pagebreak---                               15
This comment was made specifically in the context of extending the
narrow criterion of equal work to encompass the principle of equal
pay for work of equal value established by the provisions of
Convention N° 100 on equal pay concluded by the International
Labour Organisation in 1951.
However, it is not clear whether the approach extends the scope of
comparison of the jobs undertaken by women and men to cover the
enforcement of the right to equal pay to intra-or-cross industry
claims. In Defrenne II, the Court was pointing to the need for more
detailed provisions than those contained in Article 119 of the EC
Treaty in order for this to be possible. Much therefore depends on
the nature of national provisions implementing the principle of
equal pay.
Member States in the Defrenne II case recognised the potential
financial  impact  of  eliminating  gender   discrimination  in  pay
systems across all sections of industry.
The United Kingdom submitted that:
   "the cumulative effects of the resulting increases in labour
   costs would seriously aggravate the problems of controlling
   inflation. The financial    implications   vary in terms  of the
   proportion of women doing "equal work" with men, the difference
   between men's rates and woman's rates for equal work, liquidity
   problems and the proportion of labour costs to total costs.
   The footware and food industries, laundries, retail distribution
   and the clothing industry have a particularly high proportion of
   women doing equal work. The highest differential between men's
   rates  and  women's   rates  exist  in   the  textile,  clothing,
   footware, biscuit manufacturing and engineering industries. Many
   firms, in various sectors, have serious cash flow problems.
 ---pagebreak---                                 16
  The proportion of labour costs      to total costs is particularly
  high in the ship building, instrument engineering, clothing,
  paper and printing and pottery industries.
   The  clothing   industry   is thus  running  a particularly  high
   potential risk. Discrimination in rates of pay between men and
   women is not limited to any particular type of occupation.
   The overall increase in labour costs as a result of introducing
   equal pay is likely to be of the order of 3.5% of the National
   Wages and Salaries Bill, which was intended to be spread over
   five years ending 1975".
Ireland submitted that equal pay:
   "would involve extremely heavy financial obligations. As regards
   the private sector it appears that these obligations cannot be
   directly estimated. They must, however, affect privately owned
   companies   and  small   firms, the   activities of  the textile,
   clothing and footware, food processing, light engineering and
   paper and printing industries in particular, as well as sections
   of the retail trade. In many of the sectors referred to the
   majority of the work force would have a claim for equal pay.
   The average figure for the order of increase in wages and salary
    bills involved in the immediate implementation of equal pay for
   men and women in manufacturing industry would be 5%. It would be
    high in the most sensitive sectors".
In the infringement proceedings against Denmark (15), the Advocate-
General set out his view of the full implications of implementing
equal pay for work of equal value:
 ---pagebreak---                                17
  "as   appears  from the second     sentence of Article      1 of the
   Directive however, a comparison of duties within the same fixed
   establishment   of an    undertaking   or   even  within   a  single
   undertaking   will   not   always   be    sufficient.   In   certain
   circumstances  comparison with work of equal value in other
   undertakings covered by the collective agreement in question
   will be necessary.
  As is correctly observed in the annual report for 1980 of the
   Danish Council for Equal Treatment of Men and Women submitted by
   the Commission as Annex VIII to its application, in sectors with
   a  traditionnally   female   work  force,    comparison  with  other
   sectors may even be necessary.
   In certain circumstances, the additional criterion of the same
   place of work for work of equal value may therefore place a
   restriction on the principle of equal pay laid down in Article
   119 of the   Treaty and amplified in the Directive in question.
   The mere fact  that such a supplementary condition for equal pay
   which has no foundation in Article 119 or in the Directive has
   been added must in any event be regarded as a infringement of
   the Treaty. That    supplementary    condition   limits  the scope,
   governed by the Treaty, of the extension of the principle of
   equal pay for men and women to activities for equal value".
The Court was not specifically asked to rule on this point since
the proceedings concerned only the failure of Denmark to articulate
in national law the principle of equal pay for work of equal value
at all rather than the extent of comparisons between organisations.
A number of the cases before the Court have concerned the operation
of national legislative provisions (Rinner-Kuhn (16) Botel (17)),
and national collective agreements (Danfoss (18) Nimz (19), Rummler
(20), Kowalska (21)).
 ---pagebreak---                                       18
Such provisions and agreements       clearly span different establishments
and, in a number of instances, different industries.         This, therefore,
has   implications  for   any  geographical   or   regional   restrictions   on
comparisons. The laws in a number of Member States (Germany, Italy and
Greece) are silent on the question of whether or not intra-industry
comparisons are possible. However, in some cases it appears that such
comparisons may not be excluded in circumstances where the applicant and
comparator are covered by the same collective agreement.
At the same time there     is also on occasions, a restrictive approach to
comparisons in the same organisation which preclude comparisons between
groups of workers      covered by different     collective agreements. Such
restrictions fail to take account of the segregated nature of the labour
market    in which  men   and  women   will  often be    covered  by   separate
agreements because of their different occupations.
Very recently, the Court was asked to rule on this point in the case
Enderbv (22) . The Court's ruling was made in a case referred by the Court
of Appeal of England and Wales involving a female speech therapist, who
brought an action against her employers for sex discrimination.
Mrs Pamela Enderby's rate of pay set by a collective agreement. Her union
 also   negotiated  with   her   employer,   under   a  different    collective
 agreement, on behalf of a group of people including pharmacists and
 physiotherapists. The latter's pay rates, at the same level of seniority,
 were significantly greater than Enderby's. She therefore brought an equal
 pay claim, based on the work of the pharmacist and physiotherapist
 (largely staffed by men) which is assumed to be of equal value to her own
 work   as   a  speech   therapist    (which   is   overwhelmingly    a  female
 profession)
 The Court was asked whether it was sufficient justification for the
 difference in pay if the rates of pay for the jobs in question had been
 decided by collective bargaining processes which considered separately
 have no discriminatory effect.
 ---pagebreak---                                      19
The Court held that "the fact that the rates of pay at issue are decided
by collective bargaining processes conducted separately for each of the
two professional groups concerned, without any discrimination effect
within  each   group,  does   not  preclude   a  finding   of   prima  facie
discrimination where the results of those processes show that the two
groups with the same employer and the same trade union are treated
differently. If the employer could rely on the absence of discrimination
within each of the collective bargaining processes taken separately as
sufficient justification for the difference in pay, he could easily
circumvent  the priciple    of  equal  pay by   using  separate   bargaining
processes" (23).   As in Defrenne II (4), the decision of the Court in
Enderby does not deal with the question of intra-or-cross           industry
claims.
Chapter 2: Job Classification, Job Evaluation and Discrimination
a)   Job Classification and Job Evaluation
     Job classification tends to be the term used on the mainland of
     Europe whilst the term job evaluation is used in United Kingdom and
     in Ireland. Job classification is often a non-analytical process used
     to categorise   jobs. These type of schemes are used        extensively
     throughout  Europe. Job evaluation     is often perceived     to be an
     analytical means by which the relative job demands are assessed.
     Job evaluation or classification is a mechanism which can be used to
     determine the hierarchy or hierachies of jobs in an     organisation or
     group of undertakings as the basis for explaining a pay system.
     It sets out to measure the relative value of jobs, not that of the
     job holders. Ideally, the performance of the individual should not
     enter into job evaluation although, in practice, it may be difficult
     to dissociate individuals from their jobs.
 ---pagebreak---                                  20
The aim of such schemes is to provide an acceptable rationale for
determining the pay of existing hierarchies of jobs. They were and
remain a management tool to achieve an acceptable rank order of jobs,
implemented unilaterally or with varying degrees of participation by
the workforce. Acceptability,      consensus and the maintenance    of
traditional    hierarchical structures are essential ingredients of
such mechanisms.
Job evaluation schemes do not directly determine rates of pay. The
rate for the job or the salary market for a job grade is influenced
by a number of factors outside the scope of most schemes. Often, the
pay determinants and indeed hierarchies are linked to external market
pay rates, the relative bargaining strengths of the negotiating
bodies and traditional patterns of pay differentials between jobs.
Job evaluation is concerned with relationships, not absolutes.
It cannot measure in definite terms the inherent value of a job to
the   organisation,   it   is   essentially  a  comparative   process:
comparisons with other jobs, comparisons against defined standards
or comparisons of the degree to which a common criterion or factor
is present in different jobs (24).
Generally, such systems fall into two identified categories; a)
analytical or b) non-analytical. In general terms, the distinction
between the two categories is that jobs are either broken down into
 their component elements for the purposes of comparison (analytical)
 or alternatively, the relative worth of the jobs may be based on a
whole job comparison (non-analytical).
 The more formal types of schemes, particulary analytical schemes, may
be   more  objective  than   non-analytical  classification  of  jobs.
 However, no scheme can ever be fully objective since the whole
 process is based on a series of judgements made about facts presented
 to evaluators. These judgements reflect each evaluator's background,
 experience, and attitudes.
 ---pagebreak---                                 21
However, analytical schemes can be used to improve the mechanisms by
which work is assessed in that they require the collection and
analysis of data about the content of work to be consistent. The
articulation of criteria and factors means that evaluators may have
to justify decisions about the ranking of jobs in a more objective
way rather than relying on subjective opinion.
A disadvantage from the point of view of assessing whether different
work is of equal value is that many systems for comparing jobs are
unable to take account of the diverse content of jobs and are not
capable of comparing the very different types of jobs. Generally,
they cover only parts of organisations where "families" of jobs of
a similar nature can easily be compared for the purpose of ranking
eg. Production and production related jobs - unskilled operative,
semi-skilled operative, skilled operative , "tradesman", chargehand,
supervisor, manager.
Often, different hierarchies of jobs based on different evaluation
and classification schemes co-exist in an organisation with no common
yardstick from which to measure the relative value of diverse groups
of jobs, for example, production and clerical workers. Since it was
not perceived as necessary to compare, for example, the relative
demands of the job of a secretary with those of a skilled production
worker, there is no basis      from which  to determine whether the
traditionally female job of secretary is equally demanding as the
often traditionally male job.
It has been argued   that job evaluation is inflexible. It sets out
to assess only the demands of a range of jobs. It does not take
account of market forces or individual performance. Changes in some
organisations   are  leading   to  the  dismantling   of  hierarchical
structures   and  their   replacement  with   flatter   more  flexible
workforces undertaking interchangeable tasks. Often an analysis of
average pay levels, gender and job grades   reveals organisations that
are in practice less hierarchical than would appear.
 ---pagebreak---                                    22
   These features of traditional     job evaluation and    classification
   become significant when attempting to address gender inequality in
   pay systems. Given the segregation of male and female workers, the
   relative worth of work needs to be* measured by reference to a common
   standard within one place of employment, within an industry or
   between industries. Equally, the different elements in female work
   need to be identified and valued in the same way as those present in
   male work.
   Pay  systems based    on  such  schemes may  have been    in place  in
   organisations for many years and the traditional hierarchies of jobs
   often predate, without any review, the introduction of legislation
   on gender equality and the increased participation of women in the
   workplace. Many    of  the  systems  incorporate  and  legitimate  the
   tradition of paying women less even when they undertake the same jobs
   as men.
b) Job Evaluation and Classification and European Law
   Article 1 of the Equal Pay Directive provides:
   "In particular, where     a job classification    system  is used  for
   determining pay, it must be based on the same criteria for both men
    and women and so drawn up as to exclude any discrimination on the
    grounds of sex".
    The  Directive   does   not   mandate  the   implementation   of  job
    classification by employers to determine pay. However, it prohibits
    gender discrimination where such systems are used by employers as a
    basis for determining pay rates. There is no definition in the
    Directive of the term "a job classification system".
    A number of judgments of the Court have contained guidance on the
    role and nature of job classification and job evaluation.
 ---pagebreak---                                    23
In Defrenne v Sabena II        (25), the European Commission drew the
Court's attention "to the diversity of the traditional methods of
wage     formation   and    the   widely   differing    systems    of   job
classification" which existed in the Community, in the context of the
difficulties of implementing equal pay between women and men.
In McCarthys Ltd v Wendy Smith (26), the Court recognised that, in
order to identify indirect and disguised discrimination, there was
a need for:
  "comparative studies of entire branches of industry and therefore,
  as a prerequisite, the elaborating by the Community and national
  legislative bodies of criteria of assessment".
This    would   appear  to   encompass   classification    and  evaluation
techniques    as well    as  statistical   analyses  of pay    and   gender
differences.
In the jurisprudence of the Court, the term "job classification"
appears to be used to include any technique which categorises jobs
whether formal or informal, analytical or non-analytical. The term
covers both classification and evaluation. It does not appear to be
used in a technical sense. In the infringement proceedings against
the   United   Kingdom,   the   respondent  government    tends  to   refer
throughout its submissions to "job evaluation" and the Court refers
in its judgement to "job classification". Neither term is ever
defined.
The Court held that the United Kingdom had failed to implement the
provisions of Directive 75/117 because:
  "it has not introduced into its national legal system measures
  necessary to enable all employees who consider themselves wronged
  by failure to apply the principle of equal pay for men and women
  for work to which equal value is attributed and for which no system
  of   job   classification    exists  to  obtain   recognition   of   such
  equivalence (27)".
 ---pagebreak---                                24
In coming to this decision it found that:
  "the job classification system is, under the Directive, merely one
. of several methods for determining pay for work to which equal
  value is attributed(28)".
The Court found that the UK governement ' s interpretation of the
Directive:
  "amounts to a denial of the very existence of a right to equal pay
  for work of equal value where no classification has been made. Such
  a position is not consonant with the general scheme of provisions
  of the Directive. The preamble to the Directive indicates that its
  essential purpose is to implement the principle that men and women
  should receive equal pay contained in Article 119 of the Treaty and
  that it is primarily the responsability of the Member States to
  ensure the application of this principle by means of appropriate
  laws, regulations and administrative provisions in such a way that
  all  employees   in  the  Community   can be   protected  in  these
  matters(29)".
The UK government had argued that there was no provision in the
Directive enabling an employee to insist on the determination of pay
by a   job  evaluation  system. On   that basis, the UK    government
concluded that the worker cannot insist on a comparative evaluation
of different work by a job evaluation method, the introduction of
which is at the employer's discretion.
The Court spelt out the role of job classification systems in the
 context of the principle of equal pay set out in the Directive:
 ---pagebreak---                                25
 " the principle is defined in the first paragraph of Article 1 so
 as to include under the term the same work, the case of work to
 which equal value is attributed and the second paragraph emphasises
 merely   that  where   a  job classification  system   is  used  for
 determining pay it is necessary to ensure that it is based on the
 same criteria for both men and women and so drawn up to exclude any
 discrimination on grounds of sex.
 It follows that where there is a disagreement as to the application
 of that concept, a worker must be entitled to claim before an
 appropriate authority that his work has the same value as other
 work and if that is found to be the case to have his rights under
  the Treaty and the Directive acknowledged by a binding decision.
 Any method which excludes that option prevents the aim of the
  Directive from being achieved"(30)
The Court held that:
 "the implementation of the Directive implied that the assessment of
  the "equal value"    to be attributed to particular work may be
  effected notwithstanding the employer's wishes, if necessary in the
  context of adversarial proceedings. The Member States must endow an
  authority with the requisite juridiction to decide whether work has
  the same value as other work after obtaining such information as
  may be required" (31) .
In  considering   alternatives  to job  classification   by means  of
resolving equal value claims, the Commission set out its view of the
obligation of Member States:
  "to determine whether two different jobs have an equal value, they
  must be compared one with the other or evaluated against a common
  standard. That being so, Member States have a duty to set up a
  system whereby employees are able to obtain, if necessary by
  recourse to the courts, equal pay for work of equal value.
 ---pagebreak---                                26
 This means that it is not necessary to oblige all employers to
 adopt   job evaluation  schemes, but   at  the  same  time   enabling
  employers to choose whether or not to introduce       such   schemes
 without makinq any provision for equal pay in respect of jobs of
  equal value where they do not, is inadequate(32)".
The Commission found that in many cases, work of equal value will be
compared within the framework of a collective agreement or under a
job evaluation scheme or even more informally without any details of
the jobs being obtained. As mentioned earlier, various Member States
have introduced a variety of mechanisms to determine whether work was
of equal value.
In Belgium, France, Italy, Luxembourg and Germany the duty lay with
"work inspectorates". In the Netherlands, the question of whether
work is of equal value was assessed on the basis of "a reliable
system of job evaluation". Under Irish legislation, any dispute on
the subject of equal pay could be referred to one of three equality
officers.
The UK government emphasised practical considerations and saw that
"considerable expense" would be involved in "compulsory evaluation
schemes".
It is clear from the United Kingdom case that there is no obligation
on employers   to introduce   job classification  or job    evaluation
schemes. The obligation is that where an organisation uses such a
scheme it must not discriminate on grounds of gender. This is to
state no more than that legislation, collective agreements and pay
systems covering the issue addressed by the Directive must not be
discriminatory on grounds   of gender.
 ---pagebreak---                                27
Where a dispute arises as to whether work is of equal value, the
Member   States  are required  to  provide  a process   by  which  an
assessment of value can be made. Such a process appears to involve
in all Member States to a greater or lesser extent, some form of
comparison based on job evaluation or classification techniques.
In the case of Rummler v Dato Druck GmbH (31), Ms Rummler who was
employed by a printing firm, sought     reclassification to a higher
category in the pay scale. The conditions of the remuneration of the
printing industry were governed by a Framework Wage Rate Agreement
 for Industrial Employees of the Printing Industry in the territory
of the Federal Republic of Germany including West Berlin. It provided
 for seven wage groups, corresponding to the    work carried out and
 determined according to the following factors:
 a)  Degree of knowledge
 b)   Concentration
 c)  Muscular demand or effect
 d)   Responsibility
 Ms Rummler felt she should be classified as wage group 4 not 3
 because in particular she was required to pack parcels weighing more
 than 20 kilogrammes, which for her represented heavy physical work.
 To be reclassified to wage group 4, the weights had to be more than
 50 kilogrammes.
 The Arbeitsgericht Oldenburg   referred to the   Court  the question
 of whether a job classification system based on criteria of muscle
 demand or muscular effort and the heaviness of work was compatible
 with the principle of equal pay for men and women.
 The Court having determined that the nature of the work should be
 considered "objectively" held that:
 ---pagebreak---                                 28
"Where   a   job  classification    system  is   used   in   determining
remuneration, that system must be based on criteria which do not
differ according to whether the work is carried out by a man or by
a woman and must not be organised as a whole in such a manner that
it has the practical effect of discriminating generally against
workers of one sex" (34).
The Court laid down three guiding principles following from paragraph
2 of Article 1 of Directive 75/117 that:
a)   "The criteria governing pay rate classification must ensure that
     work which is objectively the same attracts the same rate of pay
     whether it is performed by a man or a woman.
b)   The use of values reflecting the average performance of workers
     of one sex as a basis for determining the extent to which work
     makes  demands   or  requires   effort  or  whether   it   is   heavy
     constitutes a form of discrimination on grounds of sex contrary
     to the Directive.
c)   In   order  for    a  job   classification    system   not    to   be
     discriminatory as a whole it must, insofar as the nature of the
     tasks carried out in the undertaking permits, take into account
     criteria for which workers of each sex may show a particular
     aptitude (35)".
These guiding principles set out that in the context of a dispute a
job   classification   system  under Article    1 paragraph    2   of  the
Directive   must  be   formal,   analytical,   factor  based   and    non-
discriminatory.
 ---pagebreak---                                29
The Danfoss   (36) case concerned a system of pay, set out in a
collective agreement, according to which all workers of the same
category  received  the  same basic   salary.  Under  the  collective
agreement, however, the employer was allowed to make additional
payments to individuals within a grade on the basis of a number of
criterion - flexibility, vocational training and seniority.
The Court held that where an undertaking applies a pay system which
is totally lacking in transparency, the burden of proof is on the
employer to show that his pay practice is not discriminatory where
a female worker establishes, by comparison with a relatively large
number of employees, that the average payment of female workers is
lower than that of male workers.
The concept of transparency articulated in Danfoss is applicable to
every element of the determination of a pay system, including any
form of classification.
In  Danfoss,   the work   of the  women   and male   comparators  was
established as equal. This merely confirms that before any system of
classification can be considered as a justification for the different
grading of jobs, the Court seized of a dispute, must itself, with
relevant  information, determine   the nature and demands     of jobs
compared  for the purposes of equal pay. Job classification and
evaluation may be reasons justifying differences in pay but their
neutrality and appropriateness for particular jobs must be assessed
against a review by the courts of the nature of disputed jobs to
comply with the Directive.
Generally, it appears   that the laws of Member States provide that
grading, classification and evaluation systems are matters to be
taken into account in the same way as any other reason put forward
by employers to justify a pay differential once the nature and
demands of the work compared have been assessed objectively.
 ---pagebreak---                                    30
    However, in the courts of some Member States, when considering such
    schemes as justifications for pay differentials, there appears to be
    a reluctance to scrutinise to any great degree the operation of job
    evaluation or classification schemes to determine whether they are
    discriminatory.
    This is particularly so where the schemes appear to be analytical.
    There  is also little doubt that applicants, their       trade union
    representatives, lawyers, national labour inspectorates and indeed,
    in some instances specialist agencies themselves are unable to assist
    the courts in identifying gender discrimination in schemes owing to
    their own lack of understanding of the topic.
c) The Implementation of Pay Structures
    The implementation of modified job evaluation and classification
    schemes designed to address positively the undervaluing of women's
   work may be limited by economic constraints. For example, a modified
    scheme may revalue women's work as equivalent to male work. However,
    in attaching pay rates to the new system the amount selected may not
    reflect the male pay rate but rather a lower figure.
    In such circumstances, male jobs may remain on protected pay rates
    as an interim measure. However, the long term effect may be, in
    reality, the introduction of a pay rate which is in fact the female
    rate for all employees. This, of course, implies an overall worsening
   of conditions, which is not the result aimed at by the social
   provisions of the Treaty.
 ---pagebreak---                                31
The principle of "levelling-up"    (extension of the more favourable
provision to the disadvantaged group in cases where discrimination
has been determined) has been enunciated in a number of cases before
the Court. In general terms, the Court considers that in the face of
a discrimination contrary to Community law, the group set at a
disadvantage by that discrimination is entitled to be treated in the
same manner, and to have the same rules applied to it, as the others
recipients,  since  those  rules   remain  the  only valid  point  of
reference.(37)
Quite recently, in Kowalska v Freie und Hansestadt Hamburg the Court
held that:
  "where there is indirect discrimination in a clause in a collective
  wage agreement, the class of persons placed at a disadvantage by
  reason of that discrimination must be treated in the same way and
  made subject to the same scheme, proportionately to the number of
  hours worked, as other workers, such scheme remaining for want of
  the correct implementation of Article 119 of the EEC Treaty in
  national law, the only valid system of reference (38)".
In Nimz again, the Court held:
  "where  there  is indirect   discrimination  in a provision    of a
  collective agreement, the national court is required to set aside
  that provision, without requesting or awaiting its prior removal by
  collective négociation or any other procedure, and to apply to
  members of the group disadvantaged by that discrimination the same
  arrangements which are applied to other employees, arrangements
  which failing the correct application of Article 119 of the EEC
  Treaty in national law, remains the only valid system of reference
   (39)".
 ---pagebreak---                                     32
    These two judgements merely confirmed an established line of case-law
    whereby, in the absence of measures to implement Article 4(1) of
     Directive 79/7 "woman are entitled to be treated in the same manner,
     and to have the same rules applied to them; as men who are in the
     same situation" (40).
    The legislation of Luxembourg and the UK specifically require the
     application of the more favourable term to the disfavoured group.
     However, where the legislation is silent, in Germany and Belgium for
     example, the courts have not ruled out the non-application of the
     benefit for all employees.
 Chapter 3 : Pay for the Purposes of Article 119 of the EC Treaty
     Article 119 of the EC Treaty provides a broad definition of pay:
       "the ordinary basic or minimum wage or salary       and any    other
       consideration,  whether  in cash  or  in kind,   which   the worker
       receives directly or indirectly, in respect of his employment from
       his employer".
     The Court has repeatedly held that the concept of pay within the
     meaning of the second paragraph of Article 119 of the EC Treaty,
     encompasses all benefits in cash or in kind, present or future,
     provided they are paid, albeit indirectly, by the employer to the
     worker in connection with his employment (41).
a)   Basic and additional pay
       Individual  pay  supplements  to  basic  pay   (Danfoss)   (42)  and
       increments based on seniority (Nimz) (43) in addition to basic and
       minimum pay fall within the scope Article 119 of the EC Treaty. It
       would appear therefore that any direct payments supplementing a
       basic wage are covered.
 ---pagebreak---                                     33
    This would appear to include shift premia, overtime and all forms
    of merit and performance pay. In the Bôtel (44) case, it was held
     that time off with pay for a part-time employee undertaking Works
     Council  training,  constitued pay.      Supplements  to "heads   of
    households" are included in the concept of pay (European Commission
    v Luxembourg) (45).
b) Contractual and non-contractual pay
     The  fact that payments    to employees   are not governed by the
     contract of employment does not remove them from the scope of pay
     in Article 119 of the EC Treaty. Gratuities paid at the discretion
     of an employer are encompassed (Garland) (46).
     Thus  pay, whether   under   a  contract,  statutory  or  collective
     provisions or on a voluntary basis is covered. In Botel (47), the
     Court held that the payment of wages during time out for Works
     Council training constituted pay for the purposes of Article 119 of
     the EC Treaty and this should be available to a part-time employee
     irrespective of whether the training was during her normal working
     hours or not.
     Under the UK's Equal Pay Act 1970 as amended, claims for equal pay
     are restricted to elements of pay which are contractual. Where an
     applicant seeks to claim the benefit of gratuities this aspect of
     her claim must be made under the Sex Discrimination Act 1975. This
     procedural complexity places an added burden on an applicant to
     identify precisely the nature of the remuneration and the correct
     legislation before her claim can succeed.
c) Benefits
     Benefits calculated in monetary terms, such as sick pay allowances
     constitute  pay   (Rinner-Kuhn)   (48). In   addition  the  monetary
     calculation for time off to pursue works council training has been
     found to constitute pay (Botel) (49).
 ---pagebreak---                                     34
d) Deferred Benefits
     Pensions, travel facilities obtainable on retirement and severance
     schemes have all been found to constitute pay          (Garland, (50),
     Barber (51)).
     It appears therefore that all forms of occupational pension schemes
     are covered by Article 119 of the EC Treaty. Only pensions paid by
     the State acting as such are excluded.
e) Social Security Benefits and pay
     In accordance with Article 119 of the EC      Treaty, "pay" means not
     only wages or salary but also "any other consideration, whether in
     cash or in kind which the worker receives directly or indirectly in
     respect of his employment from his employer" . It is important to
     know whether benefits under social security schemes have to be
     considered as pay within     the meaning of this Article.
     This question was referred to the Court for a preliminary ruling in
     the Case 80/70 Defrenne v the Belgian State (52). In its judgement
     of 25 May 1971 in the Defrenne Case (case 80/70), the Court made
     its position clear; the Court, following the conclusions of the
     Advocate-General, said that the concept of the considerations paid
     directly or indirectly in cash or in kind could not encompass
     schemes directly     governed by legislation      (statutory    schemes)
     without any element of agreement within the undertaking or the
     occupational branch concerned which are compulsorily applicable to
     the general category of workers. The Court noted that for the
     funding   of  such  schemes    workers,   employers   and   the   public
     authorities   contribute   in   a  measure  determined    less   by  the
     employment relationship than by considerations of social policy.
     For   these  reasons,    the   Court   concluded   that   "any    other,
     consideration" could not be regarded as encompassing the benefits
     from statutory social security schemes.
 ---pagebreak---                               35
On  the other    hand, however,  this  line  of  reasoning,   as the
Commission deduced immediately, means that company schemes are
included by virtue of the fact that they are not directly governed
by legislation. They involve an element of agreement within the
undertaking or the branch, they are not compulsory      for general
categories of workers but for the categories in the undertaking or
the branch and are financed by employers or workers who contribute
directly, depending on the funding needs of the schemes and not on
considerations of a social policy. This approach was confirmed in
1986.
The Court ruled in Case 170/84 Bilka-Kaufhaus v Weber (53) that the
exclusion of part-time workers from the benefits of an occupational
pension financed solely by the employer was prohibited by Article
119 of the EC Treaty where it could be established that such a
measure would mainly affect female workers unless the undertaking
showed     that the exclusion was based on objectively     justified
factors unrelated to any discrimination on ground of sex.
It should be borne in mind that the Court's judgement in the Bilka
case   (see above) came at a moment when negotiations within the
Council on the adoption of Directive 86/378/EEC relating to the
equality    of treatment between men and women     in the   field of
occupational schemes had been terminated and that, when it was
adopted, the Commission placed on record its reservations as to the
 conformity of some provisions of the Directive with the Article 119
of the EC Treaty as the Court had just interpreted it in this case.
With its judgement of 17 May 1990 (54), the Court confirms the
Commission's original interpretation and the decision in the Bilka
case and no longer leaves any room for doubt; social benefits under
the terms of an occupational scheme fall within the concept of pay
within the meaning of Article 119 of the EC Treaty.
 ---pagebreak---                                     36
f) Pay and other Working Conditions
     Increasingly, the Court blurs the distinction between "pay" and
     access to benefits. In a number of cases, it has found that the
     exclusion from a benefit because of age or hours of work thresholds
     falls  under "pay" for the purposes of Article 119 of the EC Treaty
     and not under the provisions of the Equal Treatment           Directive
     (Defrenne III (55), Kowalska (55), Bilka (57) and Nimz (58)).
g) Total Pay Package v Identifiable terms
     In Barber (59), the Court considered of fundamental importance the
     concept of "transparency" in relation to "pay" under Article 119 of
     the EC Treaty.
    It decided:
    "if   the national    courts were under an obligation        to make an
     assessment   and   a   comparison  of   all  the    various   types  of
     consideration granted to men and women, judical review would be
     difficult and the effectiveness of Article 119 of the EC Treaty
     would be diminished as a result. II follows that genuine genuine
     transparency, permitting an effective review is assured only if the
     principle  of   equal   pay  applies  to  each   of   the  elements  of
     remuneration granted to men or women (60).
   The Court ruled that:
    "the application of the principle of equal pay must be ensured in
     respect of each element of remuneration and not only on the basis
     of comprehensive assessment of the consideration paid to workers
     (61)".
 ---pagebreak---                                37
Thus, arguments which maintain that it is the total package of pay
and benefits between women and men undertaking equal work which must
be identical, appear unacceptable.
However, in Ireland and Belgium, the courts have held that the
relevant comparison for determining equal pay is the   total package
of benefits and not the identifiable unfavourable benefit (Belgium -
 Labour Court of Antwerp - 27.3.84 -     and Ireland - Labour Court
Lissadell Towels v 56 women). This would appear to be contrary to
European law.
The full implications of a complete implementation of Article 119 of
the EC Treaty and the Equal Pay Directive mean that where work is
found to be of equal value, the favourable elements of terms and
conditions apply equally to the female and male jobs.
 ---pagebreak---                                        38
PART III:      THE NEED FOR FURTHER MEASURES TO PROMOTE THE PRACTICAL
               ACHIEVEMENT OF EQUAL PAY FOR WORK OF EQUAL VALUE
     Whilst all Member States have incorporated the fundamental principle
     of equal pay into their national legislation and the judgement given
     by the European Court of Justice in the Barber              case   (62) has
     considerably clarified the scope of Article 119 of the EC Treaty,
     there has been little effective progress on achieving the principle
     of equal pay in practice.
     It is imperative that the fundamental right to equal pay under
     Article 119 of the EC Treaty as amplified by Directive 75/117/EEC is
     fully implemented at Community level. This is especially important,
     in   view of the fact that the Maastricht Treaty * has reiterated the
     Community's commitment to this principle.
     The Commission believes that, in addition to the purely legislative
     aspects, any strategy to promote the practical achievement of equal
     pay for work of equal value has to incorporate other features, which
      can be articulated around some key ideas :
   It should be noted that Protocol no. 14 of the Treaty on European Union on
   social policy and the annexed Agreement on social policy concluded by the
   Member States of the European Community with the exception of the United
   Kingdom of Great Britain and Northern Ireland contains in Article 6 (3)
   thereof an additional element in relation to equal pay. It provides that :
     "This Article shall not prevent any Member State from maintaining or
     adopting measures providing for specific advantages in order to make it
     easier for women to pursue a vocational activity or to prevent or compensate
     for disadvantages in their professional careers."
   It   might  also  be  noted   that  the  Protocol   and  the   said Agreement
   are without prejudice to the provisions of the Treaty, "particularly those
   relating to social policy which constitute an integral part of the acquis
   communautaire" .
 ---pagebreak---                                 39
1. Improvement   of baseline data on women and pay
   The need for adequate data for accurate wage comparisons between
   men and women across broad sectors and occupations throughout the
   Community has never been greater. There is an increasing demand
   for up-to-date gender-specific data.
   The Commission therefore calls on Member States to undertake and
   improve the systematic collection of essential data on gender pay
   and occupational segregation to identify wage discrimination. In
   appropriate cases, the Commission is prepared to contribute to
   such an action, either financially or by means of the Statistical
   Office of the European Communities (EUROSTAT).
2. Improved dissemination of information
   The Commission would encourage the organisation of research,
   seminars and conferences on the characteristics of payment systems
   and their impact on the gap between men's and women's earnings.
   Lack of awareness of significant cases based on Community law is
   a major disadvantage in progressing equality issues. Therefore,
   the Commission , in association with the Member States, will try
   to improve the dissemination of information on significant cases
   based on Community law, to ensure that these developments can be
   taken into account in national litigation.
3. Training
   The  Commission   would  encourage  the  organisation  of  further
   practical   and  legal  training   at  both  Community  level  and
   throughout the Member States on the implementation of equal pay
   in order to improve the knowledge of the legal provisions and
   practical ways of addressing equal pay.
 ---pagebreak---                                       40
   4.  Legal action
       The Commission will continue to have recourse to proceedings under
       Article 169 of the Treaty where this is considered appropriate.
Green Paper on European Social    Policy   : Options  for  the Union   (63)
       Further action which might be taken at Community level will be
       considered in the context of the           Green Paper on the future
       European Social Policy presented by the Commission.
       Among the options which the Commission considers warrant attention
       is the possibility of adoption of certain basic principles which
       could    serve   as  guidelines    for   joint    negotiations    on  job
        classification and job evaluation at various            levels, without
       prejudice to the autonomy and individual responsabilities of the
        social partners.
        Some of these guidelines could be used as a basis for a Code of
        Practice    on the implementation of equal pay for work of equal
        value. The idea of Code of Practice with regard to the treatment
        of weaker groups of workers has already been floated in the
       Opinion on an Equitable Wage adopted by the Commisssion on 1
        September 1993 (64).
        A code of practice on equal pay might include, for example :
            publicising in the workplace the right to equal pay for work
             of equal value.
             how to monitor the workplace by gender, occupation and pay
             and   benefits   in  the    light    of  European     and  national
             obligations.
             how  to   analyse  monitoring    information     to  determine  the
             existence and extent of wage discrimination.
 ---pagebreak---                               41
    explaining the types of strategies that can be adopted to
    address wage discrimination, eg. revision of flat rate pay,
    integrating   grades   and    categories  of   gender  segregated
    workers,   developing     non-discriminatory     job   evaluation
    schemes, redefining educational qualifications, reorganising
    work.
    providing   guidance   on   developing   non-discriminatory    job
    evaluation   schemes:- making     visible  and  capturing   female
    work, analysing   factors, levels and weighting to exclude
    discrimination,      administration,       implementation      and
    maintenance of schemes.
    how to develop a strategy for addressing wage discrimination
    appropriate to the organisation.
    how to implement the strategy to address wage discrimination,
    eg, the role of average paylines, modifying pay systems, red-
    circling.
It is envisaged that such a Code would be directed primarily at
the social partners in order to raise awareness, to provide a
training resources and     to develop confidence to address this
complex issue in the context of collective bargaining.
In this context, it is clear that one of the most innovative
features of the Social Protocol of the Maastricht Treaty is the
increased  participation    of   the  social  partners   both  in  the
formulation and implementation of Community legislation          which
offers  new possibilities in the field of equal pay.
 ---pagebreak---                                   42
NOTES
1.    COM (90) 449 final
2.    O.J. C 142, 31 May 1991
3.    Eurostat 1991
      The absence of comprehensive data prevents wholly accurate wage
      comparisons  between  women   and men  across  broad  sectors   and
      occupations throughout the European Community.
4.    Case  43/75,  Gabrielle   Defrenne  v  Society  Anonyme   belge  de
      navigation aérienne Sabena, (1976) ECR (European Court Reports),
      page 455
5.    Case 61/81, Commission of the European Communities v the United
      Kingdom of Great Britain and Northern Ireland, (1982) ECR page
      2601.
6.    Case 129/79, (1980), page 1289 paragraph 15
7.    Case 237/85, (1986), ECR page 2101
8.    Case 157/86, (1988), ECR page 673
 9.   Case 96/80,   (1981), ECR page 911
 10.  Case 184/89, (1991)   ECR page 322
 11.  ibid 4 above,   page 476, paragraph 40
 12.  ibid 6 above
 13.  Case  177/88,  Dekker   v  Stichting  Vormingscentrum   voor  Jonge
      Volwassenen (1990) ECR page 3941, paragraph 17
 ---pagebreak---                                 43
14. ibid 4 above   page 472, paragraph 19
15. Case 143/83, Commission of the European Communities v Denmark,
    1985, ECR page 427
16. Case 171/88, Rinner-Kuhn v FWW Spezial - Gebàudereinigung (1989)
    ECR page 2743
17. Case 360/90, Arbeiterwohlfahrt der Stadt Berlin v Botel, judgement
    of 4 June 1992
18. Case 109/88, Handels-OG Kantorfunktionaerernes Forbund i Danmark
    v Dansk Arbejdsgiverforening (1989), ECR page 3199
19. ibid 10   above
20. ibid   7  above
21. Case 33/89, Kowalska v Freie und Hansestadt Hamburg (1990), ECR
    page 2591
22. Case 127/92 P.M. Enderby v Frenchay Health Authority     (FHA) and
    Others, judgement of 27 October 1993, ECR (1993) page 5535
23. ibid above, paragraph 22
24. Reward   Management,  A  Handbook  of Remuneration   Strategy  and
    Practice, Michael Amstrong and Helen Murlis.
25. ibid 4 above
26. ibid 6 above
27. ibid 5 above, page 2617, paragraph 14
 ---pagebreak---                                 44
28. ibid 5 above, page 2615, paragraph   4
29. ibid 5 above, page 2615, paragraph 7
30. ibid 5 above, page 2616, paragraph   8-9
31. ibid 5 above, page 2617, paragraph 13
32. ibid 5 above, page 2612
33. ibid 7 above
34. ibid 7 above, page 2114, paragraph 13
35. ibid 7 above, page 2118 - 2119
36. ibid 18 above
37. Case 102/88, Ruzius-Wilbrik (1989), ECR 4311, paragraph 21
38. ibid 21 above, page 2614
39. ibid 10 above page 322
40. Judgments of 4 December 1986 in Case 71/85 Federatie Nederlandse
    Vakbeweging (1986) ECR 3855, paragraph 22, of 24 June 1987 in Case
    384/85 Borrie Clarke (1987) ECR 2865, paragraph 13; see also the
    judgments of 24 March 1987 in Case 286/85 Norah McDermott and Ann
    Cotter (1987) ECR 1453, paragraph 17 and of 8 March 1988 in Case
    80/87 A. Dik, A. Menkutos-Demirci and H. G. W. Laar-Vreeman (1988)
    ECR 1601, paragraph 10
41. Case 262/88, Barber v Guardian Royal Exchange Assurance Group Ltd
     (1990) ECR page 1949
 ---pagebreak---                                  45
42.  ibid 18 above
43.  ibid 10 above
44.  ibid 17 above
45.  Case 58/81 (1982), ECR page 2175
46.  Case 12/81, Eileen Garland v British Rail Engineering Ltd (1982),
     ECR page 359
47.  ibid 17 above
48.  ibid 16 above
49.  ibid 17 above
50.  ibid 44 above
51.  ibid 39 above, page 1889
52.  Case 80/70, Gabrielle Defrenne v Belgian State, (1971) ECR, page
     445
53.  Case 170/84, Bilka Kaufhaus GmbH v Karin Weber von Hartz, (1986),
     ECR, page 1607
54 . i b i d 39 a b o v e
55.  Case 149/77 (1978), ECR page 1365
56.  ibid 21 above
57.  ibid 51 above
 ---pagebreak---                                46
58. ibid 10 above
59. ibid 39 above, page 1889
60. ibid 39 above, page 1953, paragraph 34
61. ibid 39 above, page 1954, paragraph 35
62. ibid 39 above
63. COM (93) 551
64. COM (93) 388 final, adopted on 1 September 1993
 ---pagebreak---                                                                      ISSN 0254-1475
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