by Paula Määttä

C. Measures for determining and promoting pay equality

1. Permitted grounds for wage differentials

Differential treatment on account of a workers sex is permitted where a particular sex is an essential condition for the work activity.

Wage classification

Wage classifications of women and men in a number of collective agreements tended to be differentiated mainly or solely according to the criterion of "physically light" versus "physically heavy" work, thus expressly perpetuating the former wage differentiation by reason of gender. "Light wage groups" (leichtlohngruppen) were explicitly female wage groups. The April 1988 decisions of the Federal Labour Court defined the term "light physical work" as work not necessarily only devoid of muscle demand, but also work that might have other characteristics, such as a requirement to tand or to maintain certain positions, repetitive work, nervous strain, noise, and the pulse rate of work. The Court concluded that the difficulty inherent in one and the same job should be calculated according to the respective strength of the man and woman performing the job. (Report of the Committee of Experts 1995, 256.)

In its decision of 1992 confirming reclassification, the Federal Labour Court stated that the characteristics of "heavy physical work" in collective agreements did not refer exclusively to the muscular demand placed on the worker, but rather to all factors which placed a demand on the worker and led to physical reactions (such as the necessary posture, time-controlled or repetitive work, nervous or sensory stress, noise and other environmental and social factors). In the view of the Court, the principle of equal wages permits wages grading determined exclusively according to muscular demand only if the overall wage system also includes compensatory factors which are associated more with the female sex. (Report of the Committee of Experts 1995, 256.)

2. Instruments used to promote equality

Positive actions

A positive action programme has been adopted in the public sector. In Germany equal value issues have been integrated into positive action proposals which also address the issue of evaluating womens work and skills, taking into account voluntary and family work as qualifications. (ILO, 19-23 Nov 1990, 91; Rubery & Fagan 1995, 211.)

Some States have passed specific Acts to promote the position of women in public administration. The most common pattern is to give priority to women in case of equal qualification. Another pattern is for each administrative unit to define the proper quota of women to be reached within a certain period. The majority view now seems to be that the Basic Law provides the State with the authority to promote material equality between the sexes as part of its general responsibility in relation to social conditions (Sozialstaatsprinzip). (Shaw 1991, 23; Weiss 1994, 60.)

Job evaluation

In Germany job evaluation is limited to certain industries and to large enterprises. Small and medium size enterprises appear not to use job evaluation, but make do with the application of occupational wage categories specified in collective agreements. One obstacle to their wider application appears to be the attitudes of the social partners, who are wary of job evaluation when its use threatens to change substantially the existing wage structure. Job evaluation methods tend to give importance to factors related to the work environment. (ILO 1986(a), 111.)

Job evaluation has been a controversial issue in the public service. In 1976 the Governments proposals to the Bundestag for the reform of staff structure in the public services included an integrated job evaluation scheme, but the trade unions opposed the idea of a comprehensive job evaluation scheme applicable to all public services because they wanted to preserve independent bargaining. Some provincial and town councils have introduced job evaluation schemes. (ILO 1986(a), 111.)

The case of Rummler

In the case of Rummler v. Dato-Druck GmbH (237/85), Ms. Rummler, who was employed by a printing firm, sought reclassification to a higher category in the pay scale. Remuneration in the printing industry was governed by a framework Wage Rate Agreement for Industrial Employees of the Printing Industry in the territory of the Federal Republic of Germany including West Berlin. It provided for seven wage groups, corresponding to the work carried out and determined according to the following factors:

(a) Degree of knowledge

(b) Concentration

(c) Muscular demand or effect

(d) Responsibility

Ms. Rummler felt she should be classified as belonging to wage group 4 rather than 3 because, in particular, she was required to pack parcels weighing more than 20 kilograms, which for her represented heavy physical work. To be reclassified to wage group 4, the weight had to be more than 50 kilograms. The Arbeitsgericht Oldenburg referred the question of whether a job classification system based on criteria of muscle demand or muscular effort and the heaviness of work was compatible with the principle of equal pay for men and women to the European Court of Justice.

The European Court of Justice, having determined that the nature of the work should be considered "objectively", held that:

"Where a job classification system is used in determining remuneration, that system must be based on criteria which do not differ according to whether the work is carried out by a man or by a woman and must be organised as a whole in such a manner that it has the practical effect of discriminating generally against workers of one sex." (European Court Reports 1987, 37-38.)

The Court laid down three guiding principles in the Equal Pay Directive:

(a) "The criteria governing pay rate classification must ensure that work which is objectively the same attracts the same rate of pay whether it is performed by a man or a woman.

(b) The use of values reflecting the average performance of workers of one sex as a basis for determining the extent to which work makes demands or requires effort or whether it i heavy constitutes a form of discrimination on grounds of sex contrary to the Directive.

(c) In order for a job classification system not to be discriminatory as a whole it must, insofar as the nature of the tasks carried out in the undertaking permits, take into account criteria for which workers of each sex may show a particular aptitude". (European Court Reports 1987, 37-38.)

These guiding principles suggest that in the context of a dispute, a job classification system must be formal, analytical, factor-based and non-discriminatory. (Commission of the European Communities 1993, 20.)

3. Scope of comparison

In Germany, it is possible to perform the comparison of jobs between equal kinds of jobs and between different kinds of jobs. In regard to the former, factors to be compared are knowledge, education, responsibilities, and working conditions. In regard to the latter, although jobs are outwardly different they can be jobs of equal value if they meet demands of equivalent weight.