Royal Decree-Law 6/2019 has introduced urgent measures promoting equal treatment and opportunities between men and women in employment. This article asks and answers some of the most important questions on the new provisions.
By: Iñigo Sagardoy, Ana Godino and Gisella Alvarado
Firm: Sagardoy Abogados
Which companies must put in place equality plans from the entry into force of the Decree-Law?
The obligation to negotiate equality plans in companies has been substantially extended.
When drawing up an equality plan, companies have to produce a set of conclusions relating to the following elements: the recruitment process, job classification, training and promotions, terms of employment (including the so-called ‘men and women’s salary audit’), joint responsibility for workers’ exercise of their personal, family and work life rights, the under-representation of women, remuneration, and the prevention of sexual harassment and harassment on the grounds of gender. The conclusions must be negotiated with the workers’ representatives. Finally, equality plans must be recorded in a register to be established for that purpose at the Ministry of Labour.
The obligation to negotiate equality plans previously only applied to companies with more than 250 workers. The Royal Decree-Law extends this obligation to all companies with over 50 employees. However, a transitional period to comply with this legal obligation has been established. Companies with over 150 workers will have a transitional period of one year to approve their equality plans, companies with 101 to 150 workers will have a transitional period of two years, and companies with 51 to 100 workers will have a transitional period of three years to comply. This term will start running from the date of publication of the Royal Decree-Law in the Official Gazette (BOE) (7 March 2019).
How do motherhood, fatherhood and cases of ‘gender violence’ affect work placements, training and apprenticeship contracts?
‘Gender violence’ is defined in Article 1 of Organic Law 1/2004 of 28 December. It covers all acts of physical and psychological violence including assaults on sexual freedom, threats, coercion or arbitrary deprivation of liberty.
From now on, gender violence constitutes a new ground for interrupting the term of an employment contract. Maternity or paternity (which were already grounds for interrupting the term) will now be referred to as ‘birth’ and will still be a ground for interruption.
What are the consequences of terminating a worker’s probationary period during her pregnancy?
From the start of an employee’s pregnancy until she starts her leave on or before the child’s birth (formerly known as maternity leave), termination of her employment contract during the probationary period will be void. The termination will not be void if it can be proven that there are reasons for the termination unrelated to pregnancy or maternity.
What considerations should be taken into account in complying with the obligation to pay the same salary for work of equal value?
The Royal Decree-Law defines ‘work of equal value’ for the first time, stating that it is work where:
‘the nature of the functions or tasks actually entrusted, the educational, professional or training conditions required to carry them out, the factors strictly related to their performance and the working conditions under which such activities are carried out are actually equivalent.’
The new pay reporting duty for all companies: what are the reporting obligations?
All companies must create a record of salaries with the average values of salaries, salary supplements and non-salary amounts paid to their workforce, disaggregated by gender and separated by professional group, professional category and identical jobs or jobs of equal value. Workers will have access to this record through their representatives, but not directly. In companies of more than 50 employees, when the data collected shows a difference of 25% or more in the total payroll costs or in the average amounts paid to men and women, the salary record must set out how this difference is not due to reasons related to gender.
Recognition of workers’ right to adapt their working hours, the organisation of their work time and how they carry out their work (teleworking). Who can apply and what are the requirements?
Workers’ scope to adapt their working hours to achieve work-life balance has been modified. ‘Working persons’ are entitled to request that their working hours are adapted in length and distribution (for work-life balance purposes), just as they could until now. However, they will now also be able to request an adapted organisation of their work time and the way they work, including teleworking. There is a requirement for the adaptation to be reasonable and proportionate to the worker’s and the company’s needs.
If such an adaptation is requested in order to look after children, the right will continue until the child is 12. The logistics of how this right is organised will be developed via collective bargaining. If the collective bargaining agreement contains no provisions in this regard, the worker and the employer will negotiate and, where appropriate, agree on, the logistics of implementing this right for a period of 30 days. If the employer refuses to allow the worker to exercise this right (which must be done in writing) it must provide objective reasons for its decision. The specific times and reductions in working hours are to be decided by the worker, although the collective bargaining agreement may lay down criteria for balancing workers’ rights to a work-life balance against the organisation of the company. Any disagreements will be settled by the courts through a specific procedure.
What is the new infant care leave?
The former breastfeeding leave has been replaced with infant care leave, available for nine months from birth. During that time, the employee is entitled to one hour of absence, which may be divided into two parts or replaced by a half-hour reduction in his or her working hours for the same purpose. The leave can also be accumulated into full days in accordance with the terms of the collective bargaining agreement or as agreed with the company. This type of leave may be taken by both parents, although the company may limit their ability to take it simultaneously for company operational reasons. If both parents take this leave, they may do so until the child is 12 months old but, from the ninth month, it will entail a proportional reduction in salary.
Maternity and paternity leave have been made equal and are replaced with a term of suspension of the employment contract on birth. Who is entitled to this right, and for how long? How will the transitional period be applied?
Maternity and paternity leave have been made equal at 16 weeks, of which the first six weeks following the child’s birth are compulsory for both parents. The periods of leave may not be transferred between parents and, after the initial six weeks following the birth, leave can be taken part-time or full-time, as well as for week-long periods at the worker’s discretion. This can continue until the child is 12 months old.
The mother may bring the start of the leave forward to up to four weeks before the birth and, if both parents take leave at the same time, the employer may restrict it in writing for objective reasons.
The gradual timetable for the implementation of equal maternity/paternity leave is as follows:
- In 2019, paternity leave will be eight weeks, of which the first two must be taken immediately following the child’s birth, and the biological mother may transfer four weeks to the other parent.
- From 1 January 2020, paternity leave will be 12 weeks, of which the first four must be taken immediately after the child’s birth, and the biological mother may transfer up to two weeks of her leave to the other parent.
- From 1 January 2021, each parent will have 16 weeks’ leave, of which the first six weeks following the child’s birth will be compulsory for both parents.
The eight-week paternity leave entitlement comes into force on 1 April 2019.
If both parents apply for leave to look after a child for the same amount of time and under the same scheme, for how long will they retain the right to return to work?
The new rule extends the right to return to work in such cases: it will now be 18 months as compared with one year as envisaged at the time of entry into force.
Entry into force
All of the provisions described (with the exception of the gradual introduction of parental leave explained above) have now taken effect. The majority of provisions in the Royal Decree-Law took effect on 8 March 2019. Provisions relating to birth, adoption and foster care leave and related reductions in social security contributions entered into force on 1 April 2019.