Difference in pay caused by different collective agreements
The regulations in collective agreements cannot contradict the requirements of the Equality Act. Sometimes one or several employees who suspect pay discrimination may be covered by a different collective agreement than the person or persons who have a higher salary and are used for comparison. The justification for the Equality Act states that when carrying out a pay survey as part of the equality planning, the existence of different collective agreements cannot as such be seen as a reason for paying different salaries to employees who carry out the same work or work of an equal value for the same employer.
This Government Proposal refers to a judgement of the European Court of Justice in the case Enderby (C-127/92) on the scope of the prohibition of discrimination. In the case Royal Copenhagen (C-400/93) the Court of Justice stated that the principle on equal pay for women and med also can be applied when a decision on pay has been made during negotiations between unions or local negotiations. A national court can take this point into account when they assess whether or not a difference in pay is discriminatory.
The rulings KKO:2013:10 and KKO:2013:11 of the Supreme Court related to cases where a city council was paying different salaries to employees who were doing the same work because they were covered by different collective agreements. This ruling did not relate to gender equality. In its ruling the Supreme Court emphasises that no part of the case was related to gender equality even indirectly, so regulations regarding gender equality have no relevance for the matter. The case concerned discrimination based on prohibited reasons as laid down by the Non-Discrimination Act. The Supreme Court found that the actions and decisions of the city council had not treated the employees differently for prohibited reasons, and that it was not a case of discrimination based on e.g. membership in a trade union. According to the judgement, the council did however have the responsibility to even out any existing differences in pay as far as possible based on the requirement of equal treatment under the Employment Contracts Act. The Supreme Court stated that justification for pay as included in the employers remuneration system may not vary permanently when it comes to employees carrying out the same work or work of equal value. The employer must however be given the chance to harmonise different salaries over a reasonable transition period.