Expert meeting on equal pay in Amsterdam
The 23rd of April 2019, I attended an expert meeting about equal pay for men and women in the Netherlands. The meeting was organized by Vereniging Vrouw en Recht (Association for Women and Law) and Bureau Clara Wichmann. Both organizations focus on the improvement of the legal status of women and offer a network for jurists and related professionals who are interested in women and law in the Netherlands. The meeting took place at the Amsterdam Law Hub at the University of Amsterdam.
Anja Eleveld (Bureau Clara Wichmann) welcomed all participants of the expert meeting and introduced both speakers: Marlies Vegter (researcher and consultant on labor law) and Sander Heithuis (editor at WOMEN Inc.).
Presentation Marlies Vegter
Marlies Vegter gave a presentation about her research (commissioned by the European Union) about pay differences between women and men in the Netherlands. She investigated the implementation of EU rules on equal pay for men and women, more specifically Directive 2006/54 and Recommendation 2014/124 in the Netherlands. Among other things, her research found that the pay gap is larger in the private sector compared to the public sector, and that non-neutral pay criteria (such as taking into account the previously-earned wage), has negative effects for women’s pay. The Netherlands Institute for Human Rights (College voor de Rechten van de Mens) has also ruled against these type of non-neutral pay criteria, but this has not been followed up in case law until now.
The right to equal pay is enshrined in art. 7:646 par. 1 of the Dutch Civil Code and art. 7 of the Dutch Equal Treatment of Men and Women Act. However, protection agains the wage gab is quite minimal: where in other countries the labor inspection has an enforcement role, it can only take action in the Netherlands when unequal pay has already been established. In addition, employers cannot easily be obliged to provide information in relation to wages. Also, women who believe that they are paid unequally compared to their male colleagues, are expected to start a legal proceeding themselves, which could be a burden.
Therefore, starting a procedure before the Netherlands Institute for Human Rights is more accessible. The Institute can conduct a renumeration investigation at the company concerned. Still, the complainant must designate a reference person, which can be difficult as the reference person must perform the same or comparable work as the complainant. It was interesting to hear that this investigation may also be used later in legal proceedings.
After Marlies elaborated further on the current problems in terms of the implementation of the European Directive, she explained that there is a chance that the legal situation in the Netherlands will change in the (near) future. A new bill has been submitted by three political parties (GroenLinks, PvdA, 50plus and SP) to the Council of State for advice. The bill holds that organizations with more than 50 employees must apply for a certificate of equal pay for equal work. In addition, these organizations have a reporting obligation on pay differences between employees. An action plan must be developed and employees are entitled to information about the wages of colleagues who do the same work. The Social Affairs and Employment Inspectorate is authorized to impose fines for non-compliance with the rules on equal pay. The burden of proof therefore shifts from the employee to the employer.
Overall, Marlies is very positive about the new bill. However, the proposal has been submitted by opposition parties, which means that it remains to be seen whether it will be accepted. In addition, she concluded that the comparison of jobs will remain difficult and that there is a difference in the rating of “women’s jobs” and “men’s jobs”. In theory, job grading systems work well, but are more difficult in practice.
Sander Heithuis is an editor at WOMEN Inc. Among other things, the organization calls upon the Dutch government to put the gender pay gap higher on the political agenda. Additionally, WOMEN Inc. is having discussions with employers to encourage them to introduce a fairer wage policy. Sander also showcased the WOMEN Inc.’s “Where is my € 300,000?” campaign, which reached 12 million people. He said that the campaign was successful because its main aim was to raise awareness: “There will be no change if nobody knows what the problem is,” said Sander. For example, with the concept of the € 300,000 campaign, people immediately get an idea of the size of the gap, which helps to draw a clear and concrete picture of the existing problem. Furthermore, WOMEN Inc. promotes awareness by providing information on their website, where they explain the complexity of the pay gap, which is based on their own research. You can read more about the campaign here, and here is also a nice video that they produced.
Sander explained that according to their research, the wage gap in the Netherlands is 15.5%. This means that men earn 15.5% more than women. One part of the pay gap (9.5%) can be explained, but 6% cannot be explained, see also infographic below. Important to realize is that the wage gap is based on hourly wage, which means that part-time work is not an explanation (if this were to be taken into account, for example by taking the monthly wage as a starting point, the wage gap would be 37%). Factors that could explain the gap include: work experience, unequal distribution of management positions and the fact that women work relatively more often in lower-paid sectors. The part that cannot be explained reflects the unequal pay that women receive for the same work. WOMEN Inc. also focuses on the identified factors, as these are structural problems that are influenced by stereotypical thinking.
Sander indicates that WOMEN Inc. is also closely involved with the new bill on equal pay. The bill is based on the Icelandic example. WOMEN Inc. is afraid it will be ignored should it be accepted. That is why they are having discussions with employers.
After the presentations of Marlies and Sander, we had an interesting and in-depth discussion about the gender wage gap in the Netherlands. First of all, the question “Will the new bill, when it will be adopted, bring about change?” was being discussed. Most of the people present thought the new bill would generate positive change, as it would likely create more awareness. It is als a possible starting points for the Labor Inspection. The shift in the burden of proof was also considered positive. However, it is not yet clear how high the fines will be and how many fines will be given.
We also discussed that a lot of discrimination happens unknowingly. For example, 80% of HR departments are of the opinion that they are rewarding equally and research also shows that an important cause of why employers pay men more, is that wages are based on the last wage earned. Participants of the meeting agree that this circle must be stopped.
We finally discussed the best way to take further action in this field, as unequal wage cases are often individual and very complex cases. We also questioned to what extent legislation can generate change, as it are also social norms in our society that needs to change. Lastly, although the bill is a good start, we agreed that more action is needed to make sure organizations will comply with the rules.
It was a very interesting meeting and I would like to thank the Association for Women and Law and Bureau Clara Wichmann for their kind invitation.