Equal pay and equal treatment at work (Article 157 of the Treaty on the Functioning of the European Union (TFEU) and Recast Directive 2006/54)

• Author: Marlies Vegter
• Pages: 21-33

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4 Equal pay and equal treatment at work (Article 157 of the Treaty on the

Functioning of the European Union (TFEU) and Recast D irective 2006/54)

4.1 General (legal) context

4.1.1 Surveys on the gender pay gap and the difficulties of realising to equal pay

Three reports have been published by the NIHR on pay differences within general

hospitals, unive rsities of applied sciences and in surance companies. The NIHR analysed

the pay of men and women within these institutions and concluded that there were

considerable gaps to the disadvantage of women. According to the NIHR, these gaps were

to a large extent due to factors such as attaching insufficient weight to previous work

experience, determining the salary on the last salary earned elsewhere, basing the salary

on negotiations, granting extra benefits because an employee had reach ed the maximum

of his/her scale, or granting a higher salary because of shortage in the labour ma rket.58

Research into pay d ifferences between men and women is als o carried out on a regular

basis by the Central Bureau for Statistics (CBS). The last r eport of the CBS dates fr om

November 2018 an d describes the situation in 2016 and th e developments in relation to

the previous years (2008-2016).59 The CBS found that pay differences have diminished

over this period, but that there is a considerable difference between the public and the

private sector. The g ender pa y gap was 16 % in the public se ctor in 2008 and 8 % in

2016. In the private sector the gender pay gap was 22 % in 2008 and 19 % in 2016. If

these gaps are corrected for factors such as number of hours worked, education, etc.,

differences of 5 % in the public sector and 7 % in the private sector remain.

The C BS did further research into the causes of th e unadjusted pay g ap in the private

sector. It found that the four main causes are: (1) age; (2) position in the household; (3)

origin; and (4) type of employee. According to the CBS , employees ea rn more as they

grow older, but for m en this advantage is greater than for women. Employees who are

part of a household with a partner and one or more children earn more than employees in

other types of household, but here also the advantage is greater for men than for women.

In respect of (3) the CBS found that people with a Dutch background earn more than

people from other backgrounds. This factor is more important for male employee s than

for female, but it can still account for part of the pay gap, because Dutch men in particular

earn relatively more. Finally, in regard to (4), ‘normal’ employees earn more than

employees with flexible contracts (on-call workers, workers who are posted by an agency,

payrollers)60 and since more men than women have regular contracts, this also explains

part of the difference.61

The CBS did not write about the obstacles for unequal pay nor about possible remedies.

58 Commissie Gelijke Behandeling (2011), Gelijke beloning van mannen en vrouwen bij de algemene

ziekenhuizen in Nederland (Equal pay for men and women in general hospitals in the Netherlands), Utrecht,

2011, available at https://www.mensenrechten.nl/nl/publicatie/9898; College voor de Rechten van de

Mens, Verdient een man meer? Gelijke beloning van mannen en vrouwen bij hogescholen (Does a man earn

more? Equal pay for men and women within universities of applied sciences), Utrecht, 2016, available at

https://www.mensenrechten.nl/nl/publicatie/36318; College voor de Rechten van de Mens, Rapport Gelijke

beloning verzekerd? (Report on Equal Pay Insured?), Utrecht, 2017, available at

https://www.mensenrechten.nl/nl/publicatie/38165.

59 Centraal Bureau voor de Statistiek (2018), Monitor loonverschillen mannen en vrouwen, 2016 (Monitor

Equal pay differences between men and women, 2016), November 2018, available at:

https://www.cbs.nl/nl-nl/maatwerk/2018/47/monitor-loonverschillen-mannen-en-vrouwen-2016.

60 In this context payrolling is the provision of workers to a customer where the workers have been recruited

by the customer but are employees of the supplier providing the payroll services.

61 In the author’s view these conclusions are not very helpful. They merely state that in various situations

women nearly always tend to earn less than men, but it is not clear why this is the case.