Start the salary register in companies: who should do it and how

Although until now it was not required because there was no regulation that detailed how those records should be, as well as access to them. However, that has changed after the Government approved this regulation last October,   Through a Royal Decree , which includes all the obligations of companies and adds that this record will be fully enforceable as of tomorrow, April 14, 2021. Given this legal requirement, numerous questions arise which, For now, the regulation published in the Official State Gazette (BOE) on October 14, gives the following responses:

What companies should have these records?

All, "regardless of their size" says the legal norm. Thus, it affects those with at least one employee. According to the Central Directory of Companies prepared by the National Statistics Institute (INE), the latest available data indicates that there are about 1.5 million companies with employees, although some 900,000 have only 1 or 2 employees.

This registration must also be made for work personnel at the service of public administrations, but in accordance with the peculiarities established in their specific legislation.

What company workers should be included in this remuneration list?

All members of the workforce "without exception, including management personnel and senior positions," specify the regulations. All employees will also be included regardless of their type of contract or seniority in the company.

What should this record include?

It should reflect the average values of the salaries of all members of the workforce, including salary supplements and extra-salary perceptions disaggregated by sex. Specifically, to elaborate said average values, "the arithmetic mean and the median of what is actually perceived by each of these concepts in each professional group, professional category, level, position or any other applicable classification system will be used," the regulation states. .

In this way, all this information must be disaggregated according to the nature of the remuneration: base salary; each of the salary supplements; and each one of the extra-salary perceptions. In all cases, each perception must be specified differently.

How to prepare the registry?

The Ministry of Labor is finalizing a computer tool (similar to a form) that it plans to present on Thursday, which will be free and voluntary and which it has developed together with the Ministry of Equality and the employers and unions. The law also stipulates the participation of the workers' representatives in the preparation of the registry, since, as a minimum, "it must be consulted, at least ten days in advance, prior to the preparation of the registry."

How up-to-date does the salary list have to be?

The reference time period will generally be the calendar year. However, the norm indicates that the modifications that the company deems appropriate can be made "in the event of substantial alteration of any of the elements that make up the registry." These changes in the registry must be aimed at "guaranteeing compliance with the purpose set forth in the section on transparency in the configuration of perceptions, in a faithful and up-to-date manner", the regulation requires. The legal representation of the workers must be consulted, at least ten days in advance, prior to the preparation of the record. In the event that the company decides to update the registry with the modifications that have occurred throughout the year, the legal representation of the workers must also be consulted ten days in advance.

What will the information in this registry be used for?

The data contained in the registry or its absence may be used to carry out the appropriate administrative and judicial actions, whether individual or collective and according to the Law of Infractions and Sanctions of the Social Order, which includes, where appropriate, the application of the penalties if there is discrimination or if the company does not have this list as required by law. This law considers wage discrimination as a very serious offense in labor relations, which is punishable by fines of between 6,251 and 178,500 euros.

Likewise, the rule refers to possible ex officio actions in the social jurisdiction.

Who will be able to access the registry

In companies with legal representation of workers, it will be said representation that will be able to access the "full" content of the remuneration register. And in companies where there is no such representation, it will be the worker directly who has to request it. In this case, the information that will be provided by the company will not be the averaged data regarding the effective amounts of the remuneration that appear in the registry, but rather the information will be limited to the percentage differences that exist in the averaged remuneration of men and women, who must also be disaggregated according to the nature of the remuneration and the applicable classification system.

Companies also required to carry out a salary audit

What companies should also carry out a salary audit?

All companies obliged to make an Equality plan must include a remuneration audit in it. The validity of said audit, according to the legal regulations, will be the same as that of the Equality plan, unless a shorter term is agreed. Currently all companies with more than 100 workers must have an equality plan and, as of March 7, 2022, all those with more than 50 workers.

To carry out these audits, the law requires companies with this obligation to carry out a "diagnosis of the remuneration situation in the company." This will require, first, an evaluation of the jobs. In this evaluation, the company must make a "global estimate of all the factors that concur or may concur in a job, taking into account their incidence and allowing the assignment of a score or numerical value to it." The assessment must refer to each of the tasks and functions of each job in the company.

Second, said job evaluation must include possible triggers for job inequalities, as well as discrimination that may arise in the design or use of conciliation measures.

The relevance of other triggers of the pay difference, as well as the possible deficiencies or inequalities that could be appreciated in the design or use of the conciliation and joint responsibility measures in the company, or the difficulties that workers may encounter in their professional promotion or economic derived from other factors such as discretionary business actions in terms of mobility or unjustified availability requirements.

What to do with the information obtained from this audit?

These companies have to establish "an action plan for the correction of remuneration inequalities". Said plan must include: objectives, specific actions, schedule and person or persons responsible for its implementation and monitoring.

In this group of companies (with at least 50 workers), what is included in article 28.3 of the Workers' Statute will also apply, which indicates that in these companies, "if the average remuneration for workers of one sex is higher than those of the other by 25% or more, taking the total salary mass or the average of the paid perceptions, the employer must include in the salary register a justification that said difference responds to reasons not related to the sex of the people workers ". This article may not be applied to rule out the existence of signs of discrimination.