Right of a university of applied sciences language teacher in the technology field to an availability supplement (TAS 183/2020, issued on 15.2.2020)
The Ombudsman for Equality was contacted by language teacher A, who teaches in the technology field at a university of applied sciences and who suspected pay discrimination. The reason for the suspicion of discrimination was that the university of applied sciences does not pay availability supplement to language teachers in the technology field, as it does to other teachers in the technology field.
The university of applied sciences began to adopt the general collective agreement for the private teaching sector at the beginning of 2020. According to the collective agreement, the salaries of language teachers are determined according to the field of education to which they are assigned. The collective agreement automatically secures teachers assigned to the field of education of technology and transport an availability supplement as part of a personal supplement. For other teachers, the availability supplement is not a fixed part of the salary in the same way.
The entry concerning the availability supplement in the collective agreement meant that the university of applied sciences established a unit called Languages and communication. The university of applied sciences transferred to this unit, for instance, the teachers of languages and communication in the technology field, all of whom were women. It was noted that the unit’s field of teaching was other than technology. The establishment of the unit had no effects on operations.
The regulations of the collective agreement described above are relevant for the determination of A’s salary. A and the university of applied sciences disagreed on how the regulations of the collective agreement should be interpreted. The Ombudsman for Equality has no powers to interpret the contents of collective agreements. Thus the Ombudsman could not comment on how to interpret the regulation concerning the salaries of language and communication teachers, in particular, or which teachers the expression “teacher assigned to the field of education of technology and transport” in the agreement refers to. In principle, a dispute concerning the interpretation and application of a collective agreement is settled in negotiations between the labour market parties, and ultimately by the Labour Court.
With regard to the Act on Equality between Women and Men, the relevant aspect in the matter was whether the transfer of language teachers made by the employer led to a state of affairs contrary to the prohibition of pay discrimination in the Act on Equality between Women and Men. The Ombudsman for Equality looked at the matter on a general level because no individual teachers as persons of comparison was named.
If A could be deemed to do the same or equal work as one or several teachers of a different gender at the same university of applied sciences, who receive an availability supplement as a fixed part of their personal salary, an assumption of pay discrimination would be created in the case. However, an employer is not deemed to violate the prohibition of discrimination if the employer can provide a justification for the pay differences.
According to the university of applied sciences, the availability supplement was recorded in the collective agreement in the past because it has been difficult to acquire personnel for the technology field. Problems in the availability of labour can be an acceptable explanation for pay differences. Whether this is true must be evaluated specifically in each case. Mere general presumptions of availability of labour are not sufficient. Being able to cite the availability supplement as a justification for pay differences requires proof that recruiting teachers who receive an availability supplement is more difficult than recruitment of teachers in subjects who do not receive it, and this requires paying them a higher salary.