On 21 February 2019, Law 60/2018 of 21 August entered into force, approving measures to promote equal pay for equal work between women and men.
This new legislation establishes new information, monitoring, evaluation and correction mechanisms aimed at promoting equal pay between men and women, thus introducing new measures to operationalize the principle of equal working conditions, which was already provided for in Article 31 of the Portuguese Labour Code. However, the implementation of these new mechanisms should observe temporary conditions and limitations According to this new law, employers must adopt a transparent remuneration policy, based on the evaluation of the components of the employees’ duties, taking into account objective criteria both for male and female employees. This obligation will become enforceable six months after the entry into force of this law, i.e., 21st August of 2019.
In addition, this law introduces a new evaluation and correction mechanism through which the Labour Conditions Authority (“ACT”), based on the information provided annually by the companies, through the “Relatório Único” , will assess the salary’s differences by company, profession and level of qualification. As a result of this evaluation process, if a salary difference is detected in a particular company, this company will be notified by the ACT so that, within 120 days, it presents a salary differences assessment plan to be implemented for 12 months, with the purpose of excluding any possible or existing salary discrimination based on gender. At the end of the period provided for the implementation of the assessment plan for the evaluation of salary differences, employers must communicate to ACT the results of the implementation of the plan, justifying the existing salary differences or proving that the unjustified salary differences have been eliminated. Failure to comply with the obligations related to the assessment of salaries’ differences constitutes a serious offense.
However, during the first two years counting from the entry into force of the said law, i.e. until 21st February of 2021, the salary differences assessment plan will only apply to employers with 250 or more employees, extending to the employers with 50 or more employees from the third year of the entry into force of the said law, i.e. 21st February of 2022.
The referred Law also grants to employees or union’s representatives the possibility of requesting, in writing, the Committee on Equality in Work and Employment (“CITE”) to issue an opinion on the existence of salary discrimination based on gender. Cases in which the employer will be notified by the CITE to raise a point regarding the referred request and provide information on the salary policy and the criteria used to calculate the salary of the employee concerned. Following that, CITE will issue a binding opinion, which must be notified to the applicant, the employer and ACT. The latter will pursue the administrative proceedings against the employer, in case it is concluded that there are discriminatory practices based on gender. It should also be noted that the dismissal or other penalty allegedly imposed to the applicant due to an employment offense is presumed to be abusive, where it occurs within one year of the request for an opinion.
Nevertheless, this request for CITE’s opinion can only be submitted 6 months after the entry into force of the referred law, i.e., as of 21st August of 2019.