2023-07-15 01:00:09
Enacted on the last 3rd of July, Law nº 14.611/2023 provides for equal pay and remuneration criteria between men and women. It aims to regulate and ensure equal pay between women and men, by setting compensation, fines and obligations to the employer.
Salary equality is not new in the new legislation. Equal pay was already foreseen in article 461 of the CLT, which included that, “since the function is identical, all work of equal value, provided to the same employer, in the same location, will correspond, equal salary, without distinction of sex ”. In 1952, this device was amended by Law 1723, including the prohibition of wage, age and nationality discrimination and, in 2017, with the Labor Reform, it was extended to ethnic groups.
As can be seen, the recently enacted legislation did not innovate on the subject of equal pay, but brought obligations to be done with the aim, mainly, of ensuring equality and the necessary inclusion of women in the labor market (a subject that has already been dealt with in Law No. 14,457/2022).
The legislation brought as a novelty the “equal remuneration criteria”, which includes variable remuneration, such as bonuses and commissions. Situation already dealt with in jurisprudential understandings, but validated with the legislation.
Another novelty, brought by the new law, is the text of its article 3, which amends article 461 of the Consolidation of Labor Laws, ensuring the discriminated against employee, the right to claim compensation for moral damages, considering the specificities of each case.
Furthermore, the employer who fails to comply with the determinations will be subject to an administrative fine corresponding to 10 times the equivalent salary, which may be increased to twice as much in case of recurrence (ex vi §7, art. 3).
To ensure equal pay and remuneration criteria, the law established some measures: establishment of salary transparency mechanisms and remuneration criteria; increased inspection against salary discrimination and remuneration criteria between women and men; provision of specific channels for denouncing wage discrimination; promotion and implementation of diversity and inclusion programs in the work environment that cover the training of managers, leaders and employees regarding the theme of equality between men and women in the labor market, with measurement of results; and fostering the training and education of women to enter, remain and rise in the labor market on equal terms with men.
Still within the obligations to do, it remains determined that companies with more than 100 employees publish, every six months, a salary transparency report, including variable remuneration, observing the protection of personal data that deals with Law nº 3.709/2018. There is a fixed fine of up to 100 minimum wages in case of non-compliance.
The new legislation did not bring, however, any change in relation to paragraphs 1 and 2 of article 461 of the CLT, which ensures salary equality between workers who perform, in the same establishment, the same function and work of equal value, a device that constitutes a hypothesis of work with the same productivity and technical perfection. In this situation, equality is not ensured in relation to the difference in service time for the same employer not exceeding four years and the difference in time in the function not exceeding two years.
Contradictory situation to article 2 of the new law that brought in its text: “equal pay and remuneration criteria between women and men for carrying out work of equal value or in the exercise of the same function.
The proposal for the new legislation seems interesting when it intends to equalize work between women and men. But, at the same time, it brings some gaps in its interpretation since, as mentioned, it kept original some devices of the celist norm that leaves a certain legal uncertainty.
And is your company ready for the changes brought about by Law 14.611/2023? Remember, non-compliance will result in an administrative fine, in addition to the risk of lawsuits in the Labor Court.
Source: Viviane Marraccini Nogueira da Cunha, labor lawyer at Ronaldo Martins & Advogados
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