Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Equal Remuneration Convention, 1951 (No. 100) - Germany (Ratification: 1956)

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee also notes the observations of the German Confederation of Trade Unions (DGB) received on 21 November 2019. It further notes the additional observations of the DGB received on 10 November 2020. The Committee requests the Government to provide its comments with respect to the additional observations.

Article 2 of the Convention. Wage transparency. The Committee previously noted the adoption of the Act promoting remuneration transparency between women and men (Transparency of Remuneration Act), 2017, which introduces: (1) an individual entitlement for employees in establishments with more than 200 employees to obtain information on the median monthly gross salary of at least six employees of the other gender who perform the same work or work of equal value, as well as on the criteria and procedure used for determining the remuneration; and (2) regular reporting about the measures taken to promote gender equality and create equal pay for women and men for private sector employers with more than 500 employees, which are also encouraged to use internal company evaluation procedures to assess their remuneration system. It requested the Government to provide information on: (1) the implementation of the Transparency of Remuneration Act; and (2) the proportion of companies and employees covered by these provisions. The Committee notes the Government's statement, in its report, that several guides, leaflets and sample forms were disseminated to raise awareness of the provisions of the Transparency of Remuneration Act, and advice were provided to specific target groups, including workers and employers. The Government indicates that, as a result of an assessment carried out on the implementation of the Act in 2019, it appears that: (1) only 4 per cent of employees in enterprises with over 200 employees have made an information request; (2) 45 per cent of companies surveyed have voluntarily reviewed their in-house pay structures; and (3) 44 per cent of companies with reporting obligations indicated they were complying with the reporting obligation and 40 per cent were planning to do so. The Committee notes that, in its observations, the DGB considers that the assessment reveals that further amendments should be introduced in the Transparency of Remuneration Act, more particularly in order to: (1) ensure the right to information to all workers irrespective of the size of the company; (2) introduce an obligation to carry out certified evaluation procedures even for companies with less than 500 employees; (3) standardize the content and form of reporting obligations; (4) provide for sanctions in case of non-compliance of these requirements; and (5) introduce a right to bring a collective action so that the burden of enforcing their rights does not fall on individual workers. In that regard, the Committee notes the Government’s indication that, in a 2019 ruling (No. 16 Sa 983/18), the Berlin-Brandenburg State Labour Court decided that a woman journalist alleging pay discrimination was not able to exercise the individual right of information under the Transparency of Remuneration Act as, being a freelance worker, she was only a “quasi-employee” and not a “regular employee”. It however notes that, in its supplementary information, the Government indicates that following the claimant’s appeal to the Federal Labour Court, it was finally decided that the claimant was able to request information from the defendant on the criteria and procedures for wage-setting as she was, as a freelance employee, a “worker” within the meaning of section 5(2)(1) of the Act. The Committee asks the Government to continue to provide information on the implementation of the Transparency of Remuneration Act, including any assessment made of the level of compliance with the statutory reporting requirements on gender equality and equal pay at the company level, and any actions taken to address gender wage gaps revealed, and the impact thereof. It also asks the Government to provide information on: (i) any measures taken to enhance the implementation of the Act, including by raising awareness of workers, employers and their respective organizations about its provisions and remedies available; (ii) any measures envisaged to overcome obstacles to its effectiveness that may have been identified by the assessments carried out or the social partners; as well as (iii) the number of companies of more than 200 employees and of more than 500 employees in the country, as well as the proportion of the workforce covered by these undertakings.

Articles 2 and 3. Assessing and addressing the gender pay gap. The Committee previously noted the measures implemented by the Government to combat vertical and horizontal occupational gender segregation of the labour market, but expressed concern at the persistent high level of the gender pay gap. It requested the Government to strengthen its efforts in order to reduce the gender pay gap both in the public and private sectors, and address its underlying causes. The Committee notes, from the statistical information provided by the Government, that the unadjusted wage differentials between men and women slightly decreased from 21 per cent in 2017 to 20 per cent in 2019, while the gender pay gap remained unchanged in the public sector, being still estimated at 9 per cent in 2019. Clear variations still persist between the regions (21 per cent in the western part of the country, compared to 7 per cent in the eastern part of the country). The Committee notes that, in 2019, pay differentials between women and men were still particularly wide in scientific and technical activities (29 per cent); financial and insurance services (28 per cent); as well as information and communication (24 per cent) and manufacturing (23 per cent). It further notes the Government's statement that a number of causes of pay inequality have been identified among which: different choices of occupations, working hours, low representation of women in leadership positions and family-related career breaks and unpaid care work. In that regard, the Government refers to its comments made on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) on occupational gender segregation and reconciliation of work and family responsibilities. It notes that, in its observations, the DGB expresses concern at persistent stereotyped assumptions that the main responsibility for family care lies with women, which results in financial losses, career breaks and higher levels of women's participation in part-time work and "mini- jobs", thus adversely affecting their remuneration and pension levels. The Committee notes that, in its supplementary information, the Government indicates that a three-year programme “Strengthen enterprises, promote pay equality” was launched in July 2020 to embed the implementation of the pay equality requirement in enterprises as the core of a comprehensive company personnel policy. The Government adds that it will be supporting regular company discussions on the topic of pay equality, developing and awarding a label denoting fair employers and providing specific assistance on the subject of equal treatment and equality at work, including by providing examples of best practices. The Committee welcomes the initiatives implemented by the Government which contributed to the slight decrease in the gender pay gap. It however notes that: (1) the gender pay gap still remains as high as 21 per cent, being still one of the highest in the European Union (6 percentage points above the European Union average) ; and (2) according to the 2019 Structures of Earnings Survey, when women have the same formal qualifications and otherwise identical qualities as men, the pay gap between women and men is still 6 per cent in 2019, which was considered as an indication of latent discrimination against women in the labour market. The Committee urges the Government to strengthen its efforts to eliminate the gender pay gap, including by addressing the differences in remuneration that may be due to gender discrimination. It further asks the Government to provide: (i) information on the proactive measures implemented to that end, both in the public and private sectors, including by enhancing women’s access to jobs with career prospects and higher pay; (ii) information on any assessment made of the impact of such measures, including of the results of the “Strengthen enterprises, promote pay equality” programme; as well as (iii) statistical information on the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

The Committee is raising other matters in a request addressed directly to the Government.