by Paula Määttä

V. France

C. Measures for determining and promoting pay equality

1. Permitted grounds for wage differentials

The legislation does not contain any provisions that set out factors justifying differences in pay. In cases of dispute, a judge determines which factors justify a difference in pay for men and women. The differential may only be allowed for work not having the same value. (Pettiti 1993, 82.)

In 1976, a judgment of the Social Chamber of the Court of Cassation established that a difference in remuneration to the detriment of female employees may be justified by "particular characteristics or difficulties liable, regardless of any sexist consideration, to result in higher remuneration for men ...". (cedaw 1992, 63.)

Wage differentials are allowed if an employee has more work experience than another and hence advances the business more. Moreover, if a job is more arduous than another job, this feature may be used to justify differences in pay. These criteria must be related to the nature and quality of the work, otherwise they do not justify the differential. (Pettiti 1993, 82.)

2. Instruments used to promote equality

Job evaluation

Article L. 140-3 of the Labour Code provides that "the categories and criteria for job classification and upgrading schemes and all other bases for calculating remuneration, such as job evaluation systems, shall be the same for workers of both sexes". Job classifications and evaluations should not distinguish between men and women. The elements defined in collective agreements apply to both sexes. (Pettiti 1993, 83.)

Qualifications are the principal means of access to jobs. Accordingly, qualifications rather than job content are often reflected in pay grading structures. Qualification levels are defined by the following criteria: independence, responsibility, type of activity, and skill or training required. Divided into grades, these levels also enable the complexity and difficulty of the work to be taken into account. (Rubery & Fagan 1994, 284; Pettiti 1993, 83.)

The employers and workers organisations are expected to determine and adopt job evaluation criteria at the sectoral level of collective bargaining. The employers and workers organisations that are bound by sectoral collective agreements or occupational agreements are obliged to meet at least once every five years to examine the need to revise job classifications. (Pettiti 1993, 92.)

Measures for "making good"

The concept of positive discrimination has inspired measures for "making good" (rattrapage). The Act of 1983 has made provision for this, and it is set out in article L. 123-3 of the Labour Code:

"The provisions of sections L.123-1 and L.123-2 (prohibiting sexual discrimination in the vocational sphere) shall not impede the adoption of temporary measures in favour of women only for the purpose of establishing equality of opportunity between men and women, in particular by remedying de facto inequalities affecting the opportunities of women."

Three of the measures for "making good" are the following: plans for vocational equality, vocational equality contracts, and mixed employment contracts.

Plans for vocational equality are negotiated between the social partners of an enterprise (the employer and the trade union). The plans are supposed to initiate specific measures to rectify situations of inequality recorded in the annual report on comparative empoyment situations in the enterprise. For example, such measures include reserving certain types of training or job vacancies for women, or modifying the environment and the constraints of work organization in the case of women. (cedaw 1992, 23-24.)

In enterprises employing more than 50 workers, the employer is obliged to submit to the works committee or staff delegates a written report on the comparative situation of general employment and training conditions of women and men in the undertaking. This report must include figures on the actual remuneration of men and women in each of the occupational categories in the undertaking. The report must be placed at the disposal of any worker who requests it.

The Departmental Directorates of Labour and Employment have responsibility for monitoring the content of plans. The National Agency for the Improvement of Working Conditions (Agence nationale pour lamélioration des conditions de travail -- ANACT) may also intervene and collaborate in the negotiation of plans for equality in employment. (Pettiti 1993, 91.) The Act further introduces the possibility of state financial assistance to promote activities carried out in accordance with such plans.

Vocational equality contracts are a direct result of these plans. The training, promotion and labour organization activities conducted in connection with the plans for equality are eligible for financial assistance from the State. Thus, measures aimed at significantly improving the position of women in the enterprise in terms of their level of qualification and their posts can take the form of a contract between the State and the employer. The contract must stipulate the commitments undertaken by the enterprise as well as modalities for verifying that these commitments are kept. (cedaw 1992, 25.)

Mixed employment contracts were introduced experimentally by public authorities in 1987. They apply to enterprises with 600 or fewer salaried employees. The purpose of such contracts is to promote job diversification for women and to encourage their appointment to jobs and occupations where they have not been strongly represented. It is a tripartite contract, whereby the State, the employer and the woman are parties. (cedaw 1992, 25-26.)

3. Scope of comparison

Before the Act of 1983, it was not possible to make a proper comparison between womens and mens remuneration, as to do so required identification of the various components of the total salary according to identical criteria for men and women. It was therefore difficult to verify whether the principle of equality was observed. The legislation merely provided that the categories and criteria of grading and all other bases for calculating remuneration, including job evaluation methods, should be the same for both sexes.

The Act of 1983 defines the criteria to be applied to the notion of work of equal value. This Act also applies to establishments with an exclusively female staff. The Act of 1983 provides that "disparities in remuneration between establishments of a single enterprise, where the same work or work of equal value is involved, may not be based on the fact that the employees in these establishments are of one or the other sex". This Act puts an end to the inegalitarian practices of establishments employing only women or men, in respect of which comparisons wee difficult (cedaw 1992, 64).