by Paula Määttä

VI. Germany

B. Scope of the concepts on equal pay

1. The definition of "pay"

Remuneration is more than basic wage or salary. It includes fringe benefits as well as payments made by an employer in addition to social insurance benefits in the context of the employment relationship. Additional payments include bonuses, indemnities, premiums, family allowances, and additional pensions. Remuneration is paid for work performed. The exceptions are the annual vacation and special leave where, by law, the continuation of payment of remuneration is guaranteed. For example, employees are entitled to continuation of remuneration in the case of sickness. (Weiss 1994, 78, 81-83.)

The 1980 Act on Equality provides that in an employment relationship, the remuneration agreed to shall not, for equal work or work of equal value, be less than that payable to a worker of the opposite sex on account of the workers sex. No agreement on a lower rate of remuneration shall be justified by the fact that special provisions affording protection on account of the workers sex apply. Minimum standards of wages and other remuneration are obtained by collective agreements. In Germany there is no law to determine the minimum wage. The main legal source for real wages and additional payments is the labour contract. (Weiss 1994, 78.)

2. The definition of "equal work"

In Germany the Civil Code (Burgerliches Gesetzbuch) defines equal work under paragraph 612 III. First of all, equal work means jobs which are identical. Secondly, it means occupations of an equal kind where the work, though not identical, is for all intents and purposes the same if one considers knowledge, education, responsibilities and working conditions. The jobs do not have to be interchangeable and there can be specialties. Thirdly, equal work also encompasses certain jobs that are outwardly different and appear unequal, but where demands of equivalent weight must be met by each type of work as a whole. (Commission of the European Communities 1993, 5.)

3. Scope of equal pay provisions

The principle of equal pay covers the private sector and the public sector. In enterprises where as a rule more than five workers are employed, a notice concerning the equality between men and women at work, and particularly the principle of equal pay, must be placed or hung in an appropriate place for reference. Private sector employers are not bound by Article 3 of the Basic Law in regard to their conduct towards their employees. This Article operates primarily to guarantee individual rights in relation to the State. However, this Article has been adapted to suit the relationship between individuals concerning cases of equal pay for equal work. (Shaw 1991, 23; Nieminen 1991, 206.)

Equal pay provisions apply to full-time and part-time workers. In principle, the rules that apply to full-time workers also apply to part-time workers. Part-time workers are covered by the social security system, which grants benefits in case of unemployment and pension in case of retirement. Those systems are based on the requirement of minimum working time (15 and 18 hours) per week. In banking, the basic framework collective agreement was made applicable in 1989 to all part-time employees working at least 13 hours a week. Accordingly, they are entitled to all rights and benefits provided by collective agreements. Since 1992 collective agreements apply to part-time workers in the public sector. (Weiss 1994, 52.)

It is considered unlawful if part-time workers are not treated the same as full-time workers, as might be the case, for example, in relation to a the pension scheme. Such action is considered indirect discrimination, where unequal treatment based on a criterion seemingly neutral to sex turns out affect mainly persons of one sex. Indirect discrimination is allowed only if the employer can prove an urgent need for the practice an urgent need. (Weiss 1994, 59-60.)