Government proposes new gender equality legislation

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In February 2006, the Spanish government consulted the social partners on the employment-related measures in a new draft gender equality law. The proposed legislation includes measures on fighting discrimination, allowing positive action measures in collective agreements, encouraging reconciliation of work and family life, promoting equality plans and fostering good practices.

In early February 2006, the government referred to employers' organisations and trade union confederations the labour- and employment-related measures of a draft Law on Guaranteeing Equality between Women and Men ('Ley de Garantía de la Igualdad entre Hombres y Mujeres'). The aim of the law, which includes measure to transpose recent EU equality legislation, is to introduce gender equality in all spheres of social life. It aims to eliminate all direct or indirect discrimination between women and men, guaranteeing and fostering equal opportunities in political, economic, social and cultural life.

Over the next few months, the trade unions and employers' associations will discuss the proposals drawn up by the government, which affect several areas of employment and industrial relations.

Main proposals

The measures proposed by the government are aimed at fostering equal treatment for men and women, defined in the text as 'the absence of any gender discrimination, whether direct or indirect, and in particular with regard to maternity, family burdens and the marital or family situation'. The measures aimed at protecting maternity are seen as a mechanism for achieving equal opportunities, so any unfavourable treatment of women related to pregnancy or childbirth will be considered as direct gender discrimination. With regard to pay, the draft states that to put an end to the pay gap between men and women - approximately 30% according to the National Statistics Institute (Instituto Nacional de Estadística) - the principle of equal pay should be fully applied in the public and private sector. Sexual harassment is also considered as gender discrimination.

The draft states that positive action measures may be established in collective agreements to favour the access of women to employment and to apply the principles of equal treatment and non-discrimination in working conditions. These measures include programmes of integration in employment aimed mainly at women and quotas for women. The draft also mentions positive action measures that favour the access of women to all occupations, with the possibility of establishing exclusions, quotas and preferences in the conditions of recruitment so that, between candidates who are equally suited to the job, preference will be given to the sex that is least represented in the occupational group or category. This type of measure may also be applied to occupational classification and training.

One of the proposed measures is that any act of gender discrimination will be null and void and will be subject to dissuasive compensation proportional to the damage suffered. In court cases in which there is well-founded evidence of discrimination, the burden of proof will lie on the defendant rather than the plaintiff.

Companies with more than 250 workers will be obliged to negotiate over an equality plan in the framework of a collective agreement. Employers had previously expressed their disagreement with these plans, which could be why the government has not made them compulsory in all new agreements; if no agreement is reached on these plans in the bargaining process, companies will not be forced to establish them. However, the government has expressed a commitment to support the plans by providing advice to companies, particularly small and medium-sized ones.

Paternity leave will be increased from the two days laid down in the Workers' Statute (Estatuto de los Trabajadores) to 10 days. The draft bill also calls for equality in the home by prohibiting discrimination against those who do housework, which should be shared.

Reconciliation of work and family life is established as an individual right. To make this effective, the government proposes to introduce flexible working hours so that workers can adapt their working time to their personal circumstances. Unpaid leave will also allow workers to deal with special circumstances such as a sick child. Similarly, the right to shorter working hours to look after children, which is currently applicable to parents of children up to the age of six , could be extended to parents of older children. The minimum period of leave of absence of this purpose - currently a year - could also be reduced so that parents who cannot afford to take a whole year off will be able to enjoy leave of absence for a shorter period.

In order to make the new law effective in the working environment, the government plans to introduce sanctions for companies that practice discrimination and a range of incentives for good practices. A 'mark of excellence in equality'- based on the mark of excellence currently used for ecological foodstuffs - will be created for companies that meet the requirements. Public institutions will also provide subsidies for drawing up and introducing equality plans.

The measures will be introduced slowly, and four years after the passing of the law, the government proposes to bring together the trade unions and employers' associations in order to assess the state of collective bargaining on equality (ES0507204F and ES0410204F). According to the results of the assessment, it will be decided whether to make equality plans compulsory in companies with more than 250 workers.

Initial reactions

The trade unions have expressed their support for measures that favour gender equality in the working environment and feel that collective bargaining will play an important role in introducing them. The employers, on the other hand, are against measures of this type, which they consider to be too interventionist. For example, many employers and employers' representatives have criticised a 'code of good governance for companies' (Código de Buen Gobierno de las Empresas) that the National Securities Market Commission (Comisión Nacional del Mercado de Valores) put forward for debate in January 2006, which includes proposals for greater gender parity on boards of directors.

Commentary

Gender equality in the labour market and reconciliation of work and family life have been dealt with in Spanish legislation on several occasions in recent years (ES9911165F). The government's current proposal is aimed at making progress in this area through collective bargaining and establishing a 'mark of excellence' that identifies companies with good practices. However, it is likely that the collective bargaining measures will be effective only in companies with a strong trade union presence, which are often those that have a relatively low female presence in the workforce. The proposed mark of excellence in gender equality fits in with a current tendency to foster the social responsibility of companies with regard to environmental pollution and the practices of Spanish companies in other countries. Through their choice of brands, the public can favour companies that they consider to be socially responsible. However, this type of consumer action has been minimal so far in Spain, and if this tendency continues more compulsory measures may have to be considered in order to ensure gender equality. (Pablo Meseguer Gancedo, CIREM Foundation)