Equal treatment in collective bargaining

Equal treatment in collective bargaining refers to the process of negotiation between unions and employers over terms and conditions of employment, and to the rights and responsibilities of trade unions that impact impartially on women and men or promote equality of treatment between men and women.

The increasing importance for the social partners of emphasising equal opportunities in collective bargaining was emphasised early on by the European Commission (see European Commission, Third Action Programme on Equal Opportunities, 1991). The equal opportunities policy looks primarily to formal, legal means of encouraging the equal treatment of women and men in collective bargaining and beyond. However, national approaches may encompass social regulation on such via collective bargaining, as well as through the law and other means. Indeed, in some countries, social regulation is prioritised over legal regulation. For example, the European Court of Justice accepted the Danish government’s argument that the main means of implementing equal pay was via collective agreements (Commission v. Denmark, Case 143/83, [1985] ECR 427).

On the one hand, a number of legal cases demonstrate concern with the impact of collective bargaining with respect to equal treatment. For example, the separation of bargaining units into categories producing agreements more favourable to men has been declared discriminatory (Enderby v. Frenchay Area Health Authority, Case C-127/92, [1993]). Pay bargaining practices that lack transparency with respect to lower paid women (Handels-og Kontorfunktionaerernes Forbund i Danmark v. Dansk Arbejdsgiverforening, Case 109/88 [1989]) or include criteria that discriminate against women (Rummler v. Dato Druck GmbH, Case 237/85 [1986]) have been deemed illegal. Furthermore, collective agreements that contain clauses directly or indirectly discriminating against women have been found unlawful (Kowalska v. Hamburg, Case C-33/89 [1990]) or must be capable of being so declared (Commission of the EC v. UK, Case 165/82 [1983]).

On the other hand, collective bargaining has been proposed as a potentially more effective strategy than legal strategies of implementation of equal opportunities policy, as highlighted by the emergence of the European social dialogue as a primary form of EC regulation. Council Directive 2000/78, which establishes a general framework for equal treatment in employment and occupation, also explicitly refers to the role of social dialogue and collective bargaining in achieving equal treatment (Article 13).

See also: collective agreements implementing directives; equal treatment; part-time work; gender mainstreaming; positive action.