France: Equal pay legislation adopted

On 24 March 2005, the French council of ministers adopted draft equal pay legislation, designed to eliminate the wages gap between men and women within the next five years.

THE aim of achieving equal pay between men and women was announced by President Jacques Chirac during the so-called voeux vives - meetings with social partner organisations and other representatives that traditionally take place every January following the president's new year's address. Chirac called on the government to prepare legislation that would eradicate the pay gap within five years.

Equality is an issue that the president has personally championed. In 2004, the social partners unanimously concluded a national equality agreement (EIRR 363 p.30), having been encouraged to by the president, who instructed them to conclude an agreement that was "as ambitious as possible".

While formulating this draft equal pay legislation, which developed out of the equality accord, the government took on board many of the social partners' concerns. It hopes that the new law will "overcome another barrier to equality", although it is aware how much still needs to be done before real equal pay will be achieved, despite the fact that there have been various legislative steps in this direction over the years (see box). For this reason, the draft text covers other issues that are believed to contribute to inequality at work between the sexes, in particular, the problems associated with reconciling the demands of parenthood with employment and measures to further the promotion of women to decision-making posts in public sector enterprises.

Depending on the type of work compared and the factors taken into consideration, analysts estimate that the pay gap may be 25% or above. During the 1960s, it was thought to have reached 50%, so it would appear that some progress is being made, including:

• eliminating the pay gap between men and women
• combining work with family responsibilities;
• helping women to move into positions of responsibility; and
• improving the access of women to training and apprenticeship.

Eliminating the pay gap

The first section of the proposed legislation deals with concrete measures designed to eliminate the pay gap between men and women.

Article 1 seeks to compensate for the effect of having a family on women's pay. When the careers of men and women are examined, maternity leave appears to halt women's career development, especially in relation to working conditions, promotion prospects, access to training and pay increases.

Women on maternity leave are already entitled to general pay rises awarded to their colleagues. The proposed law addresses the situation where there are no collective agreements in place to ensure that female employees on maternity leave receive an average of the individual pay rises awarded to other employees doing similar jobs during the period of leave. In small companies where there are no employees to serve as comparators, the legislation provides that women on maternity leave should receive an average of all individual pay increases awarded.

The new measures also cover adoption leave.

Article 2 adds pay supplements to the list of possible grounds for pay discrimination against women, as set out in the Labour Code. This includes elements relating to factors such as physical strength, availability to work or productivity-related criteria, which may detrimentally affect how much female workers are paid. Article 2 also explicitly mentions pregnancy as a ground on which discrimination may not take place.

Article 3 obliges the sectoral negotiating partners to work towards the eradication of the gender pay gap. This was a key point in the above-mentioned 2004 national equality agreement, which allowed for the introduction of short-term measures to address the issue. This goal also forms part of France's national action plan for employment at European level.

The draft legislation envisages that sectoral agreements will aim to remove the pay gap over the next five years. It provides for the social partners to receive assistance in the form of several analytical tools that will allow them to evaluate various elements of male and female pay, to identify pay gaps and put into place any measures deemed necessary. In particular, the legislation provides for a comparative report to be drawn up for each sector that will allow the social partners to diagnose what steps are necessary at sector level.

If no discussions on this issue have commenced within one year of the publication of the legislation, one of the unions representing employees in the sector is entitled to demand that such discussions take place immediately.

Should, however, such negotiations still not be forthcoming or result in a failure to reach agreement at sectoral level, the minister with responsibility for collective bargaining will convene an ad hoc joint committee, made up of representatives from social partner organisations and chaired by a member of the government.

Finally, art. 3 states that the government will refuse to allow the extension of sectoral agreements concluded at national level that do not contain a clause relating to the abolition of the gender pay gap. Such clauses will be obligatory in all sectoral agreements concluded once the legislation has been in place for one year.

Article 4 provides for a two-stage company-level process to cover situations where there has been no negotiation on this issue.

In the first instance, negotiation should commence on the basis of a comparative analysis of the situation between men and women at the company. Companies will not be permitted to submit pay accords to the relevant regional authorities unless they also provide evidence that there have been discussions on equal pay.

The second stage of the process will impose a financial contribution on employers, based on their gross wages bill, that have not fulfilled their obligations to enter into negotiations on the issue. This will be set out in new legislation that will be drawn up once a national conference on equal pay has been held to review progress. This will take place three years after the implementation of the law and mark the halfway point before parliament commissions an evaluation report, which is scheduled for six years after the equal pay legislation comes into force.

Combining work and family

Article 5 plans for the introduction of indicators to assess how working time at the enterprise is organised, taking into account the constraints of family life and time spent by employees with their families.

This article supplements an article in the Labour Code that specifies which indicators may be used to draw up a company report on the comparative situation of general conditions of employment, training and of working conditions for men and women. To this end, the legislation introduces new regulatory indicators designed to assess work-life balance. They will be determined by a special working group within the equality commission and will be set out in a decree.

Additionally, the article in the Labour Code that defines the statistical information required in company equality reports will now include the requirement for information on the distribution of stock options analysed by gender. The aim of this is to gain a more complete picture of how non-pay elements affect employees' income.

Article 6 seeks to ensure that men and women are offered equal career opportunities. To encourage the introduction of equal opportunities policies in small and medium-sized enterprises (SMEs), the legislation offers support for companies with fewer than 250 employees that introduce a career management plan for their workers. This completes a raft of measures introduced by the social modernisation Law No. 2002-73 of 17 January 2002 and the subsequent Decree No. 2003-381 of 24 July 2003. Companies will be offered assistance in devising and implementing measures designed to help employees achieve a balance between the demands of their working lives and parental responsibilities, such as the organisation of working time and the types of services provided for families.

Article 7 introduces financial assistance for employers to pay for cover for employees on maternity or adoption leave. This is a particularly difficult problem for SMEs and the legislation targets those employing fewer than 50 people for special assistance. This measure is designed to remove one of the obstacles to the recruitment of young women and was inspired by the national agreement on vocational training of May 2004 (EIRR 366 p.27), which grants financial assistance to SMEs to help them replace employees undergoing training. The costs of the measure are estimated at €16 million a year in total, which will be fixed at a pro rata rate of €400 per employee.

Article 8 increases the training allowance of employees by 10% if the training they are undergoing means that they incur childcare costs. The legislation recognises that following a course of training requires a degree of flexibility with regard to family commitments. This measure will be of particular advantage to women and should remove one of the barriers to their further training.

This clause was included on the request of the social partners; the provision of better access to training for women was one of the pivotal measures contained in the national equality accord.

Article 9 allows for training for employees returning to work after parental leave and who go to work for another employer. This measure is accompanied by a family tax credit, which is to be included in the general tax code.

Article 10 applies existing French legislation on the burden of proof in cases of discrimination based on sex to discrimination on grounds of pregnancy. This brings French law into line with EU Directives in the area of equality.

Article 4 of EU Directive 97/80/CE on the burden of proof in cases of discrimination based on sex (EIRR 288 p.2) alters the burden of proof in cases of sex discrimination, providing that once the plaintiff has established a prima facie case of direct or indirect discrimination, it is up to the respondent to prove that there has been no breach of the principle of equal treatment.

This Directive was implemented into national law in France through changes to arts. L.122-45 and L.123-1 of the Labour Code. However, art. 3 of the Directive, which specifies its field of application, allows for the principle of the amendment to the burden of proof to apply to employees covered by Directive 92/85/EEC (on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding), if they have been discriminated against.

Additionally, art. 2 (para. 7-3) of EU equal treatment legislation -- Directive 2002/73/EC amending Directive 76/207/EEC - provides that all less favourable treatment of women on grounds of pregnancy or maternity leave in the sense of Directive 92/85/EEC constitutes discrimination in the understanding of Directive 2002/73/EC. This measure has not yet been transposed in France. According to the law as it stands, a pregnant employee who has been discriminated against does not benefit from the shift in the burden of proof that was introduced in art. L.123-1 of the Labour Code.

Further, art. 8-1 of ILO convention No.183 on maternity protection, which has not been ratified by France, provides that the pregnant employee who is discriminated against on grounds that she is pregnant should benefit from a shift in the burden of proof.

Thus, the extension to pregnant employees of changes in the burden of proof will bring French law into line with EU equality legislation, as well as give France the opportunity of ratifying the ILO convention.

Article 11 allows cases where employers have not conformed with the requirements of the measures on maternity protection and the care of children to be referred to a judge. Article L.122-30 of the Labour Code allows every employee to demand the payment of damages and interest from their employer when they have not conformed with the regulations on maternity leave and parental leave. However, other types of leave that have been introduced more recently, such as time to take care of sick children or international adoption leave, are not covered by these arrangements. Thus, the proposed legislation modifies art. L.122-30 of the Labour Code to cover these types of leave.

Article 12 clarifies the fact that employees on maternity leave are still entitled to paid leave. This follows a judgment handed down on a case in the court of cassation, France's supreme court, on 2 June 2004 that ruled that an employee on maternity leave should not lose her right to paid leave. The court of cassation does not give a decision on the facts, but only on questions of law.

Access to decision-making roles

Article 13 is designed to ensure that men and women have equal access to positions on the boards of directors of public sector companies. In 2004, a new system of accreditation for companies that have implemented exemplary equal opportunities policies was introduced (see France: Further equality initiatives), the so-called equality label (label égalité). The award of this follows scrutiny by an independent body, and all public and private companies are entitled to apply, as well as the various state institutions.

In parallel, the legislation seeks to promote real progress in the mixture of people holding positions of responsibility in public organisations, by setting out to eradicate the gender gap in terms of ministerial nominees for such posts within five years.

Additionally, the minister in charge of the civil service will be expected to promote women to the higher tiers of the service, while those in charge of each department will be expected to nominate women for such posts.

Article 14 relates to the "feminisation" of the industrial tribunals. A measure designed to increase the number of women tribunal members was introduced in 2001, prior to the 2002 elections and has had some degree of success. Further efforts will be made for the 2008 elections.

Access to vocational training and apprenticeships

Article 15 seeks to diversify regional policies on vocational training and apprenticeships. Since the implementation of Law Nos.2004-809 of 13 August 2004 relating to local competence, the regions have acquired full powers regarding young people and adults undergoing vocational training and apprenticeships, apart from those areas which are the employers' responsibility. This means that the regional administrations have become the main vehicle for promoting equality between men and women in these areas. They will be expected to play their part, together with the state and public and private employers, in the realisation of educational objectives, ensuring that people return to employment, and providing a wider career choice for men and women.

Given that there is a gender divide in the selection of careers and, in particular, apprenticeships, there should be a balance in the types and levels of training courses on offer.

Reactions

The unions have criticised the draft legislation for being "timid". While the CFTC confederation has welcomed the proposed financial sanctions, it is keen for them to be put in place. Likewise, the FO confederation felt that it was inconsistent for the government to wait three years before implementing additional legislation to introduce financial penalties.

By comparison, Jean-François Roubaud, the president of the Cgpme employers' association, which represents small and medium-sized businesses, welcomed the breathing space, stating that the three-year delay before further legislation would be introduced was reassuring for business. He said: "This is exactly what we want."

The deputy in the national assembly whose name is associated with equality legislation passed in 2001, Catherine Génisson, commented that the text was "very soft" but she was glad to see the new measures relating to employees returning from maternity leave.

But she expressed concerns that having these measures set out so clearly in the law may, paradoxically, prove a hindrance to the recruitment of women, particularly in the SME sector.

Other commentators have maintained that existing legislation would be sufficient if it were properly implemented, given that current legislation obliges companies to draw up an annual equality report and propose equal opportunity policies.