by Paula Määttä

V. France

D. Supervision and enforcement of equal pay principle

1. Labour Inspector

Article 140-6 of the Labour Code provides that the labour inspectors, the inspectors of social legislation in agriculture or, where appropriate, the other supervisory officials having the same status are responsible for ensuring compliance with the equal pay principle. They are also responsible, concurrently with police officers and employees attached to the courts, for reporting contraventions of these provisions.

The Labour Inspector is the authority responsible for ensuring the implementation of the principle of equal pay at local level. Labour Inspectors work under the authority of the Departmental Directors of Labour and Employment. They ensure that all regulations of the Labour Code are observed within the area assigned to them. (Pettiti 1993, 86.)

In pay discrimination cases, Labour Inspectors have the power to initiate proceedings when the principle of equal pay has been contravened. They do this by filing an official report which authorises the Public Prosecutors Office to bring proceedings against the employer before the Police Tribunal. Labour Inspectors can initiate criminal proceedings but they may not bring an action before the civil courts. Prior to bringing an action before the Tribunal, Labour Inspectors may reach an agreement with the employer. (Pettiti 1993, 86-87.)

2. Enforcement in wage discrimination cases

French law regarding equal pay is based on a positive obligation requiring employers to ensure equal pay for men and women workers for the same work or work of equal value. In wage discrimination cases, the employee may first of all directly approach the employer in respect of a pay discrimination complaint. The employee can also ask the staff representative or union delegate to intervene and try to reach an agreement with the employer. They can apply to the Labour Inspector to inform them about the various elements involved in wage fixing in the enterprise, especially about wage norms, occupational categories and the criteria and basis for calculating wages. (Pettiti 1993, 85.)

If there is no resolution to the wage discrimination after these initial steps, the employee can refer the case to a tribunal. Civil proceedings before the labour tribunal can be instituted individually anddirectly by the employee. The relevant union organisation at the workplace could also bring civil or criminal actions on behalf of employees (clas action), regardless of the employees are members of the union in question. However, the employees must be informed about the action. The employees can state an objection to the action and they can always intervene in any proceedings initiated by the union. (Pettiti 1993, 86.)

Criminal proceedings can be instituted by the Public Prosecutors Office, a union, or an employee. In the civil courts (labour tribunals), employees may appear themselves or be represented by a member of a union organisation, a family member or a lawyer. (Pettiti 1993, 87.)

If the judge finds that the woman does work of equal value in relation to that of a man, the employer is obliged to pay them equally. To ascertain whether workers are performing the same work or work of equal value, the judge may use an expert to examine whether the occupations are similar. However, the employees personal qualities and aptitudes can influence the results. (Pettiti 1993, 84.) There has been no litigation in the equal value area concerning different kinds of jobs in France (Commission of the European Communities 1993, 3).

If the subject of a case is governed not only by French law but also the law of the European Community, and if the latter plays a determining role in deciding the case at hand, the labour tribunal must refer the dispute to the European Court of Justice for preliminary ruling on the interpretation of Community law. The decision of the European Court of Justice is binding on the French courts at all levels.

Article L 123-5 of the Labour Code, as incorporated by Act of 1983, prohibits the dismissal of a worker as a result of a lawsuit instituted by an employee or on her behalf for non-compliance with the equal pay principle. Where it has been proved that the dismissal in question lacks genuine grounds, and is in fact a measure adopted by an employer to victimise the employee, the dismissal is null and void, and the employee must be reinstated. If she refuses to continue her work, she must be awarded damages and compensation. Where the sanctions on the employer are minor, the employee is also entitled to demand nullification.

3. The burden of proof

Article L. 140-8 of the Labour Code makes provision for the burden of proof in legal actions involving the application of the equal pay principle:

"the employer shall furnish to the judge any elements which may justify the inequality of remuneration at issue. In the light of these elements and of those furnished by the worker in support of his complaints, the judge shall make his decision after having ordered, where necessary, such inquiries as he deems appropriate. The worker shall have the benefit of any doubt which remains."

The employer is obliged to supply affirmative proof that the principle of equal pay has been respected. However, the employee must take an active part in the legal action, otherwise she will not be awarded the benefit of the doubt.

4. Remedies

French law provides for both civil and criminal sanctions to enforce the principle of equal pay. Article L 140-4 of the Labour Code designates that regulations contrary to the principle are null and void. In such cases, the higher rate of pay is substituted for the previous rate and an employee may also claim back-pay for a maximum of five years. In respect to penal sanctions, the employer is liable to a fine of between FF 2 500 and FF 5 000 for each worker paid at the discriminatory rate.

The Act of 1983 introduced measures to remedy persistent discriminatory practices and to bring about the concrete achievement of equal pay. These remedial measures are introduced at the particular workplace concerned. In such cases, the employer is declared guilty, and is ordered by the court to define, after consultation with the employees representatives, appropriate measures to re-establish equality in pay between men and women in the enterprise that is party to the proceedings. The intention is to put pressure on employers to enforce the principle of equal pay.