The SME spokesperson raises concerns about the draft wage gap legislation

The SME spokesperson points to overregulation in the draft wage gap bill. The fresh rules can peculiarly burden tiny and medium-sized entrepreneurs.

Ombudsman's reservations on the wage gap provisions. 1 of the most crucial changes to labour law this year is the implementation of Directive (EU) concerning equal pay for men and women. The draft legislation, prepared by the Ministry of Family, Labour and Social Policy, was given an opinion by the Ombudsman of SMEs.

Equal pay and burdens for entrepreneurs

In his speech to Agnieszka Dziemianovich-Bąk, Minister of Family, Labour and Social Policy, Minister Agnieszka Majewska welcomes the thought of combating sex pay discrimination (the alleged wage gap). On the another hand, it points out that the proposed government introduces complex obligations for employers and results in many overregulations. This will be peculiarly severe for smaller entrepreneurs who do not have the appropriate structures and tools to meet the requirements.

According to Agnieszka Majewska, the directive itself draws attention to the request for an appropriate approach to SMEs. However, the analysis of the content of the bill leads to the conclusion that any of the proposed solutions may rise doubts as to their relevance and proportionality.

Article 6 of the Wages Act – Tools for Employers

An example may be the wording of Article 6, which provides that the Minister liable for work shall make available on his website an online tool or method enabling employers to measure the value of jobs or the kind of work. The task justification refers to a guide and file in Excel format for specified an assessment.

However, according to Minister Majewski, these possibly useful solutions are not sufficient. The SME Ombudsman so calls for them to be complemented by an work from the appointed minister to supply clarification on compliance with the proposed law in order to guarantee its uniform and predictable application. An institution of legal explanations referred to in the Business Law could be an example of specified conduct.

Obligations of employers up to 50 employees – Article 7 of the project

A number of concerns arise from Article 7, which concerns the obligations of the employer relating to the principles of determining the criteria for determining the remuneration of workers, the levels of remuneration and their growth. A literal reading of the article leads to the conclusion that this regulation imposes more obligations on employers with less than 50 employees.

Notwithstanding the essential corrections in this respect, Minister Majewska notes that the Directive entitles associate States to full exempt employers employing little than 50 employees from the work to inform them of the circumstantial criteria for the advancement of remuneration in the company, and that specified exemption does not supply for the draft law in question. According to the Ombudsman, this would be an optimal solution.

Remuneration policy and information obligations – Articles 8 and 9

The provisions of Articles 8 and 9 on the provision by the employer of information on remuneration policies are more restrictive than foreseen by the Directive.

Wage gap reports and Article 17 of the bill

The proposed law besides obliges employers employing at least 100 employees to supply cyclical wage gap reports in a given company. Article 17, which refers to the electronic transmission by employers of ‘additional information indicated by the monitoring body’, imposes obligations on traders whose content and scope have not been clearly defined, which gives emergence to the hazard of explanation disputes.

Deadlines for explaining employers - Articles 22 and 24

Minister Majewska sees examples of overly strict solutions compared to the wording of the Directive besides in Articles 22 and 24, setting short deadlines for employers to supply the requested information and explanations, which, as indicated by the proposed law, may sometimes be ‘detailed’ and ‘additional’ compared to the previously provided data.

Financial penalties and pay gap in Poland

The Ombudsman further questions the amount of fines for infringement of the law. They exceed the level of penalties for offences against workers' rights provided for by the Labour Code. This raises doubts that the sex pay gap in Poland is importantly lower than the EU average (7.8% and 12% respectively in 2023).

The full content of the position of the SME Ombudsman Agnieszka Majewskia available HERE.

SOURCE: Ombudsman for tiny and average Entrepreneurs