The Principle of “Equal Pay”
The International Labour Organisation (ILO) emphasizes the core concept of “equal pay” as a fundamental principle ensuring parity of wages for similar work, irrespective of gender, race, or status. The ILO's stance underscores the need to address gender pay disparities as a direct form of discrimination. This concept is articulated in article 14 of the Maltese Constitution, guaranteeing protection against discrimination and obligating the promotion of equal rights for both men and women across various realms. This article establishes measures to eliminate gender-based discrimination and actively pursue equal rights and wages for female workers.
Legislative Foundation in Malta
Malta's legal framework encapsulates the principle of ‘Equal Pay for Equal Work', through Articles 26 and 27 of the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta), which specifically prohibits any wage differentiation for employees in the same job category and performing work of equal value. Employers are forbidden from engaging in discriminatory practices based on gender or sexual orientation in matters concerning wage payments. This prohibition is explicitly articulated in the Equal Treatment in Employment Regulations (Subsidiary Legislation 452.95), serving as an additional reinforcement to the main Act aiming at ensuring fair and unbiased treatment of all individuals within the workplace. The Equality for Men and Women Act (Malta) (Chapter 456) further contributes to this objective, emphasizing the obligation for employers to provide equal compensation to qualified men and women undertaking identical work in the same working conditions.
Equal Treatment in Employment Regulations
These Regulations give effect to the relevant provisions of Council Directive 2006/54/EC and apply to all persons within both the public and private sectors.
Discriminatory treatment
As stated within Regulation 2, “discriminatory treatment” refers to any unjustifiable distinction, exclusion, restriction, or difference in treatment, against individuals based on their sex, whether direct or indirect and within a democratic society. Moreover, Regulation 3 prohibits an individual from subjecting another person to discriminatory treatment based on specified grounds, including religion, disability, age, sex, sexual orientation, and racial or ethnic origin. Direct discriminatory treatment occurs when someone is treated less favourably based on these grounds, while indirect discriminatory treatment arises from ostensibly neutral practices that disadvantage certain groups, unless justified by a legitimate aim. The Regulations also expressly prohibit harassment, both generally and sexually, defining the parameters that constitute violations, such as creating an intimidating or offensive environment.
Employers are obligated to prevent both direct and indirect gender-based discrimination in the compensation for the same work or work of equal value, encompassing all aspects and conditions. This involves ensuring that any job classification system used to determine pay follows identical criteria for both male and female employees, eliminating potential gender-based discrimination.1
Difference in treatment on occupational requirements
Notwithstanding the above, any difference of treatment based on characteristics related to religion or religious belief, disability, age, sexual orientation, and racial or ethnic origin may not be considered discriminatory if it is a genuine and essential occupational requirement, provided that the objective is legitimate and the requirement is proportionate. Additionally, employers with a religious ethos have the right to expect loyalty from employees to that ethos, and differential treatment based on religion is acceptable if proportionate and justified by the nature of the job. The provisions of the Regulations also allow for sex-based differential treatment in employment if it constitutes a genuine occupational requirement, given the nature of the specific activities and if the objective is legitimate and proportionate.2
Difference in treatment according to age
Despite what is stated above, Regulation 5 of the Regulations states that age-related differences in treatment will not be considered discriminatory if
(i) such differences are objectively and reasonably justified by a legitimate aim, including legitimate employment policies, labour market objectives, and vocational training goals; and
(ii) the means of achieving that aim are appropriate and necessary.
These non-discriminatory differences in treatment may include:
(a) implementing specific conditions for access to employment and vocational training, such as dismissal and remuneration conditions, for young people, older workers, and individuals with caregiving responsibilities, aimed at promoting vocational integration or ensuring their protection;
(b) establishing minimum age, professional experience, or seniority conditions for access to employment or certain employment-related benefits;
(c) specifying a maximum age for recruitment based on post-specific training requirements or the necessity for a reasonable employment period before retirement.
Acts not deemed to be ‘unlawful'
The Regulations do not render any act unlawful if they are related to:
(a) providing access to training benefits for individuals of a particular religion or religious belief, disability, age, sexual orientation, or racial or ethnic origin, to prepare them for specific work; or
(b) encouraging individuals from the mentioned groups to pursue particular work, if the act reasonably aims to prevent or compensate for disadvantages associated with religion or religious belief, disability, age, sexual orientation, or racial or ethnic origin.
Additionally, no unlawful act arises from maintaining or adopting measures that provide specific advantages to facilitate the under-represented sex's engagement in vocational activities or address disadvantages in professional careers, promoting full equality between men and women in the workplace.3
Report on Alleged Discriminatory Treatment
An individual who claims to have suffered discriminatory treatment, whether direct or indirect, in their employment, has the right to refer the matter to the Industrial Tribunal for redress within four months of the alleged breach, as outlined in Article 30 of the main Act. Additionally, an individual who is alleging that another person has committed an unlawful act against them can, within four months of the alleged breach, bring a legal action before the competent Civil Court. The request may seek an order for the defendant to cease the unlawful act and, where applicable, compensation for damages resulting from that act.4
When an allegation of discriminatory treatment is made, the person making the claim or the Director of Labour may send a written notification to the employer or organization, detailing the alleged discriminatory treatment and requesting a reply. The respondent must provide a written response within ten working days, presenting their version of events, grounds for disputing the allegations, and an explanation of any relevant procedures to prevent discriminatory treatment. If the employer or organization fails to reply deliberately and without a reasonable excuse, or if the response is evasive, the Tribunal or Court may draw inferences, including inferring that the respondent committed an unlawful act. The requirement for the respondent to reply does not apply if proceedings had already been initiated on the matter in front of the Industrial Tribunal or other Court when the request was made.5
The Equality for Men and Women Act
Article 2(3) of the Equality for Men and Women Act (hereinafter referred to as the ‘Act') states that “discrimination based on sex or because of family responsibilities or sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity, gender expression or sex characteristics is:”
(i) The giving of less favourable treatment directly or indirectly based on the individual's sex, family responsibilities, sexual orientation, age, religion or belief, racial or ethnic origin, gender identity, gender expression, or sex characteristics;
(ii) Treating women less favourably due to actual or potential pregnancy or childbirth.
(iii) Treating men and women less favourably based on parenthood;
(iii) Any treatment resulting from a provision, criterion, or practice that puts individuals at a particular disadvantage, unless justified by objective factors unrelated to the mentioned characteristics.
Moreover, affording special protection to women during childbirth or pregnancy and implementing measures as positive action to achieve substantive equality for men and women shall not be considered as discrimination.
Discrimination in employment
Article 4 of the Act prohibits employers from discriminating, whether directly or indirectly, in the processes of determining who should be offered employment, the terms and conditions of employment, or the decisions related to dismissals. Additionally, employers will be considered to have engaged in discrimination if they:
(a) Manage work, promotions, task distribution, training opportunities, or other working conditions in a manner that assigns employees a less favourable status based on sex or family responsibilities;
(b) Change the working conditions or employment terms to the detriment of employees after they have asserted their rights under the Act or requested the fulfilment of obligations under the Act;
(c) Fail to fulfil their obligation to prevent sexual harassment at the workplace.
Furthermore, Article 5 obliges employers to provide a report within ten working days, detailing alleged incidents or procedures used in cases of sexual harassment or discrimination, upon request by individuals or the Commissioner for the Promotion of Equality.
Article 10 of the Act refers to discriminatory advertisement and states that without prejudice to the provisions in Article 26 of the Employment and Industrial Relations Act, it is unlawful for individuals to publish, display, or facilitate the publication or display of any discriminatory job advertisement or solicit information about the private lives or family plans of job seekers. However, this does not apply if employers can demonstrate that the nature of the advertised position requires specific gender characteristics. Additionally, individuals are prohibited from publishing or displaying any advertisement that promotes discrimination or engages in discriminatory practices.
European Support
The principle of ‘Equal Pay for Equal Work' is supported by various EU legal frameworks. Such as Article 11 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which mandates the adoption of appropriate measures to ensure the right to equal remuneration and treatment for work of equal value; Article 157(1) of the Treaty on the Functioning of the European Union (TFEU) which requires each Member State to enforce the principle of equal pay for male and female workers undertaking equal work or work of equal value; Directive 2006/54/EC; the Charter of Fundamental Human Rights, and decisions from the European Courts of Justice.
Ensuring equality between men and women is a foundational principle in EU law, as articulated in Article 2 and Article 3(2) of the Treat establishing the European Community and upheld by the Court of Justice of the European Union. Fundamental to the application of equal treatment is ensuring equitable access to employment and vocational training.
EU Pay Transparency Directive: Strengthening Equal Pay
An essential aspect of eliminating pay discrimination involves ensuring pay transparency. Despite efforts, the principle of equal pay, enshrined in Article 157 of the Treaty on the Functioning of the European Union, is challenged by the gender pay gap. To address this issue, the European Parliament enacted the EU Pay Transparency Directive (Directive 2023/970) in March 2023. Member states are expected to adhere to its provisions by June 2026, aiming to eliminate the gender pay gap by enhancing pay transparency and enforcement mechanisms.
The EU Pay Transparency Directive compels employers to undertake various measures to ensure compliance with principles related to pay transparency and the elimination of pay discrimination. These measures include:
- Employers must disclose salary information for advertised positions, prohibiting inquiries about candidates' pay history;6
- Employers must provide workers with accessible information on the criteria used to determine pay levels and pay progression, considering factors such as individual performance, skills development, and seniority;7
- Workers have the right to request information about their pay level and the average pay levels, categorized by gender, for workers in the same role or performing work of equal value.8 This information can be obtained directly, through representatives, or an equality body.9 Employers must annually inform workers of this right and the steps to exercise it, and they can proactively provide this information;[10]
- Employers shall provide any information shared with workers or applicants for employment in a format which is accessible to persons with disabilities, and which takes into account their particular needs;11
- Employers are encouraged to explain any gender pay differences and, if unjustified by objective, gender-neutral criteria, employers shall take corrective measures to remedy the situation within a reasonable period of time with close cooperation with workers' representatives, the labour inspectorate and/or the equality body;12
- Employers are required to submit reports on the gender-based pay gap, and if it exceeds 5% without justification, joint assessments with worker representatives become mandatory. In cases of identified discriminatory treatment, the burden of proof lies with the employer, and victims are entitled to appropriate compensation.13
Malta's Pursuit of Equal Pay for Equal Work
Malta's longstanding commitment to equal pay for equal work, coupled with the EU Pay Transparency Directive, represents a significant stride towards achieving gender equality at the workplace. By combining legal frameworks, international support, and proactive legislative measures, Malta and the EU are working towards a future where equal pay is not just a principle, but a reality.
In essence, from an employer's standpoint, adherence to legal frameworks not only aligns with regulatory requirements but also contributes to creating an equitable and diverse workplace. By embracing equal pay principles and actively participating in initiatives aimed at closing the gender pay gap, employers can foster a culture of fairness, attract a variety of talents, and contribute to a more inclusive future.
Footnotes
1. Regulation 3A, Subsidiary Legislation 452.95, Laws of Malta;
2. Regulation 4, Subsidiary Legislation 452.95, Laws of Malta;
3. Regulation 6, Subsidiary Legislation 452.95, Laws of Malta;
4. Regulation 10, Subsidiary Legislation 452.95, Laws of Malta;
5. Regulation 9, Subsidiary Legislation 452.95, Laws of Malta;
6. Article 5 2023/970 Directive;
7. Article 6(1) 2023/970 Directive;
8. Article 7(1) 2023/97 Directive;
9. Equality bodies promote equal treatment by providing independent assistance to victims of discrimination;
10. Article 7(2) 2023/970 Directive;
11. Article 8 2023/970 Directive;
12. Article 9(10) 2023/970 Directive;
13. Article 10(1) 2023/970 Directive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.