by Paula Määttä

IV. Finland

D. Supervision and enforcement of equal pay principle

1. Equality authorities: Equality Ombuds- man and Equality Board

The Office of the Equality Ombudsman and the Equality Board, which are government bodies, supervise the implementation of the Equality Act. The Equality Board includes a chair and four other members and it works part-time, having no office of its own. The Equality Ombudsmans duty is to prevent the continuation or recurrence of actions that are contrary to the provisions of the Equality Act. The Equality Ombudsman can make statements and give advice and instructions in individual cases concerning the application of the Equality Act. The nature of the Equality Ombudsmans involvement is administrative rather than judicial.

The Equality Ombudsman has the right to receive any information from public authorities and private employers for the purpose of supervising compliance with the Act. The Equality Ombudsman also has the right to carry out inspections at workplaces if there is reason to suspet that an employer is acting contrary to the Equality Act. The Equality Ombudsman can be contacted directly by an employee, and was contacted in writing by 28 people in 1990 in respect to complaints about pay discrimination. In addition to responding to written requests, the Equality Ombudsman gives advice concerning pay discrimination over the phone.

The Equality Ombudsman may bring a case involving the contravention of the Act before the Equality Board, in respect to which the Board may prohibit the continuation or recurrence of the action concerned. An appeal against a decision by the Equality Board may be made to the Supreme Administrative Court.

2. The process of wage discrimination case

Cases of wage discrimination can be dealt with in general courts or in the labour court. General courts deal with cases where wages are not based on collective agreements, while the labour court considers cases where wages are fixed by collective agreements. Over ten legal proceedings in this area had been initiated by Spring 1989.

The Equality Ombudsmans opinion can be requested on issues concerning equal pay. The Equality Ombudsman can clarify the guidelines for determining whether jobs are of equal value. If wages are not based on collective agreements, the Equality Ombudsman can give an opinion on the level of wages paid for different jobs. In cases where wages are based on a collective agreement, the Equality Ombudsman can recommend that the value of jobs should be clarified and that wage levels should be adjusted. The equality authorities are willing to take a continuing participatory role in determining the matter. (Heikkerö et al. 1993, 72.)

Alternatively, in a discrimination case the Equality Ombudsman may bring the matter to the consideration of the Equality Board. The Board may then prohibit the continuation or recurrence of the discriminatory procedure under threat of penalty or a fine, if necessary. An appeal against the Equality Boards decision may be made to the Supreme Administrative Court. The prohibition must be observed in spite of the appeal, unless otherwise prescribed by the Equality Board or the Supreme Administrative Court. (Heikkerö et al. 1993, 71.)

In the case of wage discrimination, the employee must first prove that her wages are lower than the wages of a male comparator and that her work is the same or of equal value as the work of the comparator employed by the same employer. Thereafter the burden of proof shifts to the employer, who has to prove that there is some acceptable legal reason for the differences in wages. (Bruun & Koskinen 1986, 137.)

If the subject matter is governed not only by Finnish law but also by the law of the European Union, and if the latter plays a determining role in deciding the case at stake, the general courts and the labour court may, and the Supreme Administrative Court must, refer the dispute on the interpretation of Community law to the European Court of Justice for a preliminary ruling. The decision of the European Court of Justice is binding on all levels of the Finnish courts.

Legal expenses often constitute a signifcant obstacle to court proceedings. Unionised employees may receive legal aid from their trade unions in matters concerning discrimination based on sex. An important principle of compensation in such proceedings is that the loser is obliged to pay the other partys legal expenses. (Heikkerö et al. 1993, 72-73.)

Remedies and protection against victimisation

The aggrieved person may request that a discriminatory wage term in a contract of employment is declared null and avoid. The employee is also entitled to receive her proper wages backdated to the beginning of the employment relationship. In practice, this is not a simple matter because it is usually impossible for individual employees to obtain information on the wages of other employees in order to find out whether or not they have been subject to discrimination.

The aggrieved person also may claim compensation for any damage caused by the discrimination, as well as compensation for the violation of the prohibition on discrimination. The latter category of compensation may be between FIM15 000 and FIM50 000 depending on the nature of the offence. However, the court may, in certain cases, decrease the minimum amount or withhold the remedy entirely if it is considered reasonable to do so because of the employers economic situation or for other reasons. On the other hand, a maximum amount can be exceeded in certain cases, when a remedy can be awarded of no more than FMK100 000.

There are no provisions for the protection of employees against reprisals by the employer in the Equality Act. In practice, the general regulations concerning protection against arbitrary dismissal would provide the only means of protection. An employer may not dismiss an employee without good substantive reason, the existence of which has to be proved by the employer in case of dispute. (Heikkerö et al. 1993, 73.)