I. Introduction

Last 24th March 2007 the Organic Law 3/2007, for the Effective Equality of Men and Women (hereinafter, the "Equal Status Act"), came into force in Spain. One of the main novelties of said Law lies in the prevention of discriminatory behaviour and in the forecast of active policies for the principle of equality to become effective.

The Equal Status Act renders special attention to amending the inequalities of the specific area of employment relationships. Thus, the adoption of specific measures in favour of the equality in companies is trying to be promoted, placing them within the framework of a collective negotiation so that it is the parties that agree the content. In the same way, the right to combine one's working life with their personal one is recognized and specific environments of action are regulated, such as promotion, access to employment or the problem of harassment at work.

On the other hand, one of the stipulations of the Equal Status Act lies in the implementation of an "award on equality". Accordingly, the Ministry of Employment and Social Services will create an award to recognize the efforts of those companies who stand out due to their policies of equal opportunities and treatment with their employees. This award may be used in the course of a company's trade and with aims to advertising.

II. Duty To Negotiate Measures In Order To Promote The Equal Treatment And Opportunities Between Men And Women Within The Working Environment

From an employment point of view, the main consequence of the approval of the Equal Status Act lies with the obligation that is imposed on companies to adopt measures aimed at avoiding any type of employment discrimination between men and women. Therefore, the measures aimed at promoting equality of treatment and opportunities between employees of both sexes must be included in the content of every collective negotiation process.

However, there is no legal obligation for such promotion measures on equality to be incorporated into the collective bargaining agreement, but the Equal Status Act just stipulates that the negotiating parties of the collective bargaining agreement are obliged to negotiate under the principle of good faith.

The above supposes the impossibility of one negotiating party previously rejecting any kind of measure aimed at promoting the equality of treatment and opportunities between men and women being the object of discussion during the negotiation process. Therefore, said measures should be debated and discussed in the interests of reaching an agreement, and to therefore incorporate them in the content of the collective bargaining agreement.

Irrespective of the above, the fact that the negotiation process of the collective bargaining agreement is finalised without the parties being capable of reaching an agreement on equality, does not free the companies from the obligation of adopting measures aimed at avoiding any kind of employment discrimination between men and women.

III. Specific Obligation To Negotiate Equality Plans In Companies Of More Than 250 Employees

Although, in accordance with that previously stated all the companies have the generic obligation to negotiate measures which encourage the equality between men and women, the Equal Status Act establishes the obligation to draw up an Equality Plan for those companies that have more than two hundred and fifty employees. Nevertheless, the collective bargaining agreements of a supra-managerial or sectorial nature can impose the obligation to elaborate and apply an Equality Plan for companies with less staff.

The first question we ask lies with the way the abovementioned number of employees should be calculated. In this respect, unless the supra-managerial or sectorial bargaining agreements contain specific rules to determine the criteria of its calculation, the number of employees at the time of initiating the collective negotiation process should be taken into account, that is, at the time of constituting the negotiating commission of the agreement. Thus, if the company at that date has the minimum number of employees that the Law requires (two hundred and fifty-one), it will be obliged to draw up an Equality Plan.

The Equal Status Act differentiates two situations when implementing the effects of the Equality Plan, depending on whether the company has its own collective bargaining agreement (company collective bargaining agreement) or whether it applies a supra-managerial or sectorial bargaining agreement.

Regarding the company's collective bargaining agreements, the doubt which is raised is in which managerial scope should the negotiation be carried out. In principle, the implementation of Equality Plans should affect the whole company, not the specific work centres, without prejudice to the Equality Plan establishing special, adequate actions with respect to certain work centres.

Likewise, maintaining the implementation of an Equality Plan by means of a collective bargaining agreement of a group of companies would constitute a valid and adequate tool in order to fulfil the obligation of an Equality Plan negotiation.

Should the Company not have its own collective negotiation, the previsions contained in the supra-managerial or sectorial collective bargaining agreement applicable to the company would come into play. However, taking into account the date that the Equal Status Act came into force (24th March 2007), there are very few collective bargaining agreements which contain specific measures on this matter. Therefore, the agreements reached in the next few months for collective negotiations of a supra-managerial or sectorial scope would be of great relevance.

In this second case, the framework within which this negotiation duty should be developed is the one corresponding to the company's agreement which would be signed between the company and the employees' legal representatives and would have a general enforcement. In those cases in which the company does not have any legal representatives of the employees, a collective negotiation process, strictly speaking, could not be carried out, which is why the company should fulfil the obligation to establish an Equality Plan by means of unilateral measures.

IV. Main Negotiation Matters

Equality Plans are defined as an orderly group of measures adopted after a diagnosis of the situation is carried out and designed to reach the equality of treatment and opportunities between men and women in the company and to eliminate sex discrimination. Therefore, the specific objectives to be reached on equality, the strategies and practises which must be adopted to be obtained, as well as the establishment of systems which are efficient to follow-up and the evaluation of fixed objectives, should be determined.

Consequently, and merely for enunciation purposes, the Equal Status Act establishes, that Equality Plans could contemplate, amongst others, matters for access to employment, professional classification, promotion and training, remuneration, working time to favour the combining of employment, personal and family life, as well as other matters which refer to the prevention of sexual harassment and harassment due to gender.

Nevertheless, this does not mean that measures, which favour the equality of opportunities between men and women, should be limited to the mentioned matters because in the core of the collective negotiation, whether it be managerial or supra-managerial, any kind of measure designed to obtain the effective equality of opportunities between men and women should be included. Thus, other measures such as the possibility of taking the breast-feeding period immediately after the maternity leave or specific norms to regulate the applications for paternity leave, could be dealt with.

Before the Equal Status Act came into force, the Inter-Federal Agreement for the collective negotiation for the year 2007 contemplated a series of guidelines in effective equality matter between men and women which should be dealt with in the core of the collective negotiation. Thus, measures such as the inclusion of positive action clauses to encourage the access of women with equal conditions to jobs and sectors where they find themselves sub-represented are included; the rectification of the differences that could exist in remuneration of the same value; or the establishment of criteria on converting temporary contracts into open-end ones which favour women when, in the same conditions and with the same merits, they are more affected than men by the higher level of temporality.

Without prejudice to the foregoing, any kind of measure capable of promoting the effective equality between men and women in the employment scope would be possible in an Equal Status Plan. In this sense, besides those previously mentioned, we could include measures designed to creating guidelines in order to carry out the selection of hiring new people according to gender; the creation of assessment and adaptation plans of job positions or working conditions for pregnant women; the performance of several informative campaigns in the core of the company (for the promotion of women's presence in jobs with greater responsibility or for promoting family responsibilities to be shared between both spouses); the creation of sensitizing programmes for equality and for the usage of non-sexist language in reports, advertising...

V. Special Reference To Employment Harassment

Within the measures which companies must tackle in the collective negotiation in order to promote the effective equality between men and women and the non-discrimination, we can highlight the obligation to negotiate some measures tending to avoid situations of employment harassment.

The Equal Status Act establishes that companies must promote such employment conditions to avoid the appearance of situations of sexual harassment o harassment due to gender. Additionally, it also provides that specific proceedings shall be arbitrated for the prevention of this type of situations and in order to give way to claims which those employees, who have been object of any kind of harassment situation, can file.

To this end, it is possible to establish measures, such as the elaboration and diffusion of codes of good practice, carrying out information campaigns or actions to train employees.

However, the Equal Status Act does not only impose obligations on companies in relation to this matter. Also, the employees' representatives have a responsibility in this scope, as they must contribute to the prevention of sexual or gender harassment at work, by means of the employees' sensitiveness against this type of discriminatory conducts. Likewise, they shall inform the company's management of any kind of conduct or behaviour of which they are aware regarding this matter.

In this sense, we must point out that the measures which are to be adopted must scrupulously respect the intimacy of that employee who has suffered from any kind of discriminatory situation or harassment. On the other hand, companies must act disciplinarily against those employees who promote harassment situations in order to avoid any eventual harassment behaviour by other employees.

With respect to the foregoing, it is important to highlight that the Equal Status Act has introduced a remarkable novelty in procedural matters for the cases in which employees' claims are grounded in discriminatory performances due to gender. In such cases, the defendant company shall have to prove the lack of discrimination in the adopted measures and its proportionality. It deals with an inversion of the applicable burden of proof of those cases in which the employee claims to have been object of discriminatory conducts, which may place those companies in a difficult procedural situation, since they would have to prove a negative fact, that is, the lack of discrimination.

Therefore, the fact that companies promote and adopt specific measures in order to avoid harassment and discriminatory situations in the employment scope will be very significant.

VI. Infringements And Sanctions In Case Of Non-Fulfilment Of The Equal Status Act

After the approval of the Equal Status Act, companies could be sanctioned if they do not comply with its regulations. Thus, in the first place, companies would incur in a serious breach, to be sanctioned with fines of between 626 euros and 6,250 euros, for not complying with the obligations on Equality Plan matters (such as, not implementing the Equality Plan).

On the other hand, the company's unilateral decisions which imply direct or indirect discriminations, or which suppose an unfavourable treatment of the employees are considered very serious infringement, as well as employment harassment when produced in the environment within the reach of the company's management faculties, whoever the active subject is, provided that the company, once aware of the harassment, did not adopt the necessary measures to prevent it.

Said infractions will be sanctioned with fines that could range between 6,250 euros and 187,515 euros, without prejudice that, in addition, the following, extra sanctions can be imposed: (i) automatic loss of allowances, discounts, and in general, of the benefits derived from the application of employment programmes, with effect from the date in which the infraction was committed; (ii) automatic exclusion of access to such benefits for six months.

However, in some cases, the extra sanctions (not the main one) mentioned above could be substituted for the elaboration and application of a company Equality Plan, if decided by the competent Employment Authorities. Should the company not comply with the elaboration of a Plan, there could be a new, economical sanction of between 6,250 euros and 187,515 euros for committing a very serious infraction, without prejudice to being imposed with new, extra sanctions.

Taking into account all the above, the companies should need adequate advice to comply with the previsions of the Equal Status Act, not just because of the importance of the matter but also because of court cases and sanctions which companies would have to face in the case of non-fulfilment of the referred to regulation on effective equality between men and women.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.