Date when decision was rendered: 14.4.1998

Judicial body: Labour Court = Arbetsdomstolen = Työtuomioistuin

Reference: Report No. 34; R63/97

Reference to source

Registry of the Labour Court

Arbetsdomstolens registratorskontor

Työtuomioistuimen kirjaamo

Date of publication:

Subject

sexual discrimination, equality, pregnancy, equal remuneration,
könsdiskriminering, jämlikhet, graviditet, rätt till lika lön för lika arbete,
sukupuolisyrjintä, tasa-arvo, raskaus, oikeus samaan palkkaan samasta työstä,

Relevant legal provisions

Sections 7 and 8 of the Equality Act; general municipal collective agreement

= jämlikhetslagen 7 §, 8 §; kommunalt allmänt tjänste- och kollektivavtal

= laki miesten ja naisten välisestä tasa-arvosta 7 §, 8 §; kunnallinen yleinen virka- ja työehtosopimus.

CEDAW-11-2-b, Article 3 of ILO Convention No. 156, Council Directive 75/117/EEC , Article 119 of the EC Treaty

Abstract

Several trade unions in the public sector asked the Labour Court to affirm that section 26 of the general municipal collective agreement (KVTES) was null and void, or null as far as it stipulated that maternity leave and parental leave were not to be regarded as time periods that shall be taken into account when calculating an employee's entitlement to a salary supplement based on work experience, to the extent that the total absence from work exceeded 30 days.

The trade unions also asked the Court to affirm this entitlement in a specific case of nurse X who had worked in the municipal sector and had been on maternity leave and parental leave.Based on section 26-2 of the collective agreement, her employer had refused to take this time into account when calculating her entitlement to a salary supplement based on work experience.The trade unions claimed that this violated sections 7 and 8 of the Equality Act, Article 119 of the EC Treaty, Council Directive 75/117/EEC on equal pay, Article 11-2-b of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ILO Convention No. 156, as well as the Act on the Employment Security of Municipal Officeholders.The Equality Act prohibits salary systems and practices that are directly or indirectly discriminatory on the basis of pregnancy, giving of birth or parenthood.Article 119 of the EC Treaty guarantees the right to equal pay.Article 4 of Council Directive 75/117/EEC requires Member States to undertake appropriate measures to ensure that, i.a., provisions of collective agreements violating the principle of equal pay are declared null and void.Article 11 of the CEDAW states that State Parties shall take appropriate measures to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances.Article 3 of ILO Convention No. 156 requires states to strive to ensure that persons who care for a family and want to participate in working life are not discriminated against.

In interpreting the Equality Act, the Labour Court referred to EC law and the case law of the European Court of Justice (i.a., the cases of Danfoos, Nimz, Bilka and Gillespie).Considering the question whether the collective agreement violated the Equality Act, the Court noted that the employer claimed that the salary supplement was based on real work experience that improves the skills and work results of an employee.Under the Equality Act, salary supplements are considered as allowed if benefitting men and women on equal conditions.The Court noted that the prohibition of discrimination in the Equality Act cannot be vaived by means of signing a collective agreement.Taking the above considerations into account, the Labour Court found that section 26-2 of the collective agreement violated the Equality Act as far as it stipulated that maternity leave and parental leave are not to be regarded as time periods taken into account when calculating an employee's entitlement to a salary supplement based on work experience, to the extent the leave exceeds 30 days.The Court the refore declared the provision void to this part and affirmed the right of the nurse in the specific case to have the whole time period of her maternity and parental leave taken into account in the calculation of her entitlement to salary supplements based on work experience.(A vote).

The judgment was the first where the Labour Court found a provision of a collective agreement to be void due to its character as being sexually discriminatory.The same collective agreement also applies to study leave and military service.As the case concerned maternity leave and parental leave, the Court took no stand on these issues.

20.4.1998 / 27.3.2003 / LISNELLM