Extended working hours of environmental health inspectors (TAS 27/2019, issued on 27 March 2020)
The Ombudsman for Equality was asked to assess whether it is in breach of the Act on Equality between Women and Men (Equality Act) that in the General collective agreement for municipal personnel (KVTES) the working hours of environmental health inspectors in female-dominated environmental health care have been agreed differently than the working hours of male-dominated building inspectors and environmental inspectors. According to the notification received, the job descriptions of all the inspector duties referred to above are quite similar, and the quality and nature of the activities are totally identical.
The working hour provisions of Annex 18 to the General collective agreement for municipal personnel (KVTES) 2018–2019 shall be applied to health inspectors. Their regular working hours shall not exceed 9 hours per day and 38 hours 15 minutes per week. According to the notification, the working hours applied to building inspectors are the regular working hours for office staff. In office work, the regular working hours shall not exceed 9 hours per day and 36 hours 45 minutes per week.
In his statement, the Ombudsman for Equality stated that the provisions of the collective agreement or the collective agreement for civil servants may be discriminatory as such. In order to assess this, it should be examined whether the provisions affect women to whom the provisions are applied less favourably than men to whom they are applied, or vice versa. In this case, no such matters emerged that would have given rise to such suspicions.
The application of different provisions of collective agreements or collective agreement for civil servants to various groups of employees may result in a discriminatory outcome, even if the provisions were not discriminatory within their particular scope of application. This may be the case if the employee groups can be considered to be in the same position with a view to granting a benefit, but they are treated differently as recipients of the benefit.
The discriminatory nature of the procedures cannot be assessed based on examining the applicable provisions of collective agreements or collective agreement for civil servants alone if determining whether employees are in the same position or not requires, for example, examination of matters related to the work concretely carried out by employees. For example, a suspicion of pay discrimination may be related to the fact that the collective agreement or collective agreement for civil servants may define different salaries for groups of employees in female-dominated and male-dominated tasks. Therefore, establishing discrimination requires, among other things, determining whether employees belonging to these groups of employees perform the same work or work of equal value.
In this case, assessing potential discrimination would require examining whether health inspectors can be considered to be in the same or comparable position with building inspectors and environmental inspectors with regard to the criteria for determining their working hours. It should be noted that, when applying the prohibitions of discrimination of the Equality Act, unfavourable treatment is mainly examined between employees working for the same employer. Thus, in practice, for example, a female health inspector could compare her work and the conditions applied to her working hours with the work and the conditions applied to the working hours of a male building inspector working in the same local government. The Ombudsman for Equality stated that, from the viewpoint of the Act on Equality between Women and Men, the fact that the terms and conditions of employment are laid down in the collective agreement or collective agreement for civil servants alone does not necessarily make them acceptable.