by Paula Määttä

D. Supervision and enforcement of equal pay principle

1. Supervising bodies

The Office of Labour Inspection (Gewerbeaufsicht) is established in every state. This office has the task of supervising the enforcement of protective rules. The office not only has a supervisory function, but is also supposed to be proactive and advise employers how to carry out protective regulations effectively. In addition, there are special state agencies for specific groups which have supervisory, advisory and regulatory functions. Among these are the special commissions for homeworkers (Heimarbeitsausschüsse). (Weiss 1994, 33.)

2. Methods of enforcement

Germany has no administrative enforcement and investigation authority. The Gleichstellungsstellen of the states and cities can and do provide legal assistance and advice to victims of discrimination, andoften write letters on behalf of complainants setting out the legal situation as they see it, with the aim of expediting the case, but their services do not extend to representing clients in court. (Shaw 1991, 41.)

A worker who has an employment discrimination complaint has several options:

(1) A complaint may be made to the competent authorities in the plaint, either personally or through a member of the works council;

(2) A complaint may be made to the works council, which is obliged to listen to the employees grievance and, if it appears justified, try to induce the employer to remedy it. (Weiss 1994, 117.)

If the employer and the works council do not agree on the justification of the complaint, the works council may appeal to the arbitration committee. The decision of the arbitration committee can serve as a recommendation to the employer and the works council on how the case should be handled. (Weiss 1994, 117.)

When a complaint refers to a conflict of rights, the worker can take it to the Labour Court and may choose any of the above options, or a combination of them. Thus, the worker may first take a complaint directly to the establishments authority. If unsuccessful, the worker can take the complaint to the works council, and after that there is a right of appeal to the Court. It is also possible for a worker to skip the first two steps and go directly to the Court, or to omit only the first step and address the complaint to the works council. (Weiss 1994, 118.)

In Germany, the Labour Courts are the principal mechanism for resolving conflicts in individual as well as in collective labour disputes. The German labour court system has three tiers: labour courts of first instance, appellate labour courts, and at the highest tier, the Federal Labour Court.

Labour courts of first instance are composed of one or more panels, each with a professional judge as chairperson and one lay judge each from employer and employee sides. Every case brought before the labour court begins with a conciliation session heard by the chairperson alone. The purpose of this procedure is to achieve an amicable settlement between the parties. If the matter cannot be settled, it is the chairpersons responsibility to prepare the case in such a manner that it can be heard, if possible, in one sitting. (Weiss 1994, 107, 112-113.)

Appellate labour courts, as courts of the second instance, are exclusively authorized to hear appeals against decisions of the labour courts. As a rule their jurisdiction extends throughout one State. Like those of the labour courts of first instance, the individual panels are composed of one professional judge and one lay judge each from the ranks of employers and employees. (Weiss 1994, 108.)

Under certain circumstances, judgments handed down by the appellate labour courts may be appealed in turn to the Federal Labour Court on questions of law. The Federal Labour Court is comprised of ten divisions called senates. A senate consists also of one professional judge and two lay judges, one each from the employer and employee sides. The Federal Labour Courts decisions are normally final (Weiss 1994, 108.)

If the subject of a case is governed not only by German law but also by the law of the European Community, and if the latter plays a determining role in deciding the case at stake, the labour courts of first instance and the appellate labour courts may, and the Federal Labour Court must, refer the dispute on the interpretation of Community law to the European Court of Justice in Luxembourg for preliminary ruling. The decision of the European Court of Justice is binding on the German labour courts at all levels. (Weiss 1994, 108-109.)

3. Burden of proof

Germany has amended its law to place the burden of proof on the employer. The employee must first demonstrate prima facie the facts which indicate that there has been discrimination. The Works Constitution Act, 1972 states that the employee is entitled to an explanation of how remuneration is calculated and the elements of which it is composed. The onus then shifts to the employer to disprove discrimination, to justify the different treatment, or to establish the sex of the worker as a permissible determining factor in the employment decision. In general it is not very difficult for an employer to find such reasons. The works council, however, has the power to check whether there is compliance with legislation regarding equal treatment.

4. Remedies

If the employer, when establishing an employment relationship, discriminates against a job applicant on the basis of sex, the individual affected can demand appropriate compensation in money, up to a maximum of three months wages. A "months wage" means the sum in cash and in kind to which the applicant would have been entitled for regular work over one month. A claim must be made in writing within two months after the refusal of the application is received. An action for compensation must be brought within three months after the claim has been put forward in writing.

If several applicants (class action) bring an action to court, the sum of the individual compensation is limited, on application by the employer, to six months wages, or to 12 months wages if the employer has carried out a uniform selection procedure for the purpose of establishing several employment relationships. If the employer makes an application, the Labour Court to which the first action was brought is alone responsible for the other actions. Legal disputes are referred to this court ex officio, and proceedings are joined for simultaneous hearing and decision. This applies only in enterprises which normally have up to 400 workers.