Equal pay decree: transparency obligations and penalties for pay differences of more than 5 per cent

Companies will have to make employee pay formation mechanisms visible and verifiable. Employers will have to make the criteria used to determine pay and pay levels, but also those established for economic progression, 'easily accessible' to employees. The worker has the right to request and receive in writing within two months of the request information 'on the average pay levels, broken down by gender, of categories of workers performing the same or equally valuable work'.

 These are some of the provisions contained in the draft legislative decree on equal pay and transparency, prepared in implementation of EU directive 2023/970, which, barring any last-minute surprises, is expected to be on the table at the next council of ministers. The Ministry of Labour has summoned around forty trade unions and employers' associations to the table to illustrate the 16-article text of the draft legislative decree, which, after the initial green light from the council of ministers and the parliamentary process, must be definitively approved before the 7 June deadline.

The legislative decree applies to all employers (with different fulfilments and timeframes, depending on the number of employees) and all workers, with a subordinate employment relationship, both public and private, also to those employed with a domestic work contract, managers, and job applicants. In the draft, the comparison that serves to bring out any differences in remuneration that penalise female workers is with respect to "the same work" and "work of equal value" (this is to be understood as "different work performed in the exercise of comparable tasks") with "reference to the Ccnl applied by the employer" or, failing that, to the "Ccnl signed by the trade unions comparatively more representative at national level for the reference sector". With this wording, companies have pointed out that the reference must be to the comparatively most representative contracts only, as the EU directive requires, to avoid comparisons being made with 'pirate' contracts. The Minister of Labour may, with one or more decrees, adopt by 31 December 2026 acts of direction, aimed at declaring the implementation of this article.

For employers, a range of data is collected, from the gender pay gap (also median) to the percentage of female and male workers receiving complementary or variable components. All this information will have to be made accessible by the employer to the workers (or their representatives); it will also have to be transmitted (if requested) to the Labour Inspectorate and to the territorially competent equality bodies. Any of them may ask the employer for clarifications and further details on the communicated data, including explanations on possible gender pay differences. Employers will have to provide a reasoned answer within a reasonable time.

The deadline for collecting all this data may not exceed 7 June 2027 for employers with at least 150 employees and 7 June 2031 for all other obliged employers. Employers with fewer than 50 employees are not required to make the criteria for economic progression available. Employers with fewer than 100 employees may publish on their intranet or in the restricted area of the company website information on average salary levels by gender, of categories of employees performing the same or equally valuable work.