Mercado inmobiliario residencial en Portugal
2. Redes Neuronales Artificiales
2.4. Estructura de una red neuronal artificial
2.4.3. Entrenamiento de las Redes Neuronales
In the last part of our paper we outline with the judgments of the Court of Justice of the European Union (in the following: Court) such possibilities, which support the harmonization of HRM-aspects and principle of equal pay for equal work, mainly referring to labour law aspects. It is important that the labour law aspects of the practical problems raised in this paper can be observed mainly in the fundamental principle of equal pay – as it was mentioned above – because the basic requirement of remuneration without discrimination can make a wage system inflexible or even inequitable, so it should be examined how “flexible” the principle of equal pay for equal work is in this regard.
In relation to these legal problems important statements can be observed in the Cadman- case,20 which approaches the problem from the prohibition of gender discrimination and the interpretation of the principle of equal pay, but a detailed analysis is useful because the task of the
19 See: NÁDAS, GY. The role of liability for damages in Labour Law, p. 1567-1572. and SIPKA, P.
The Regulation of The Working Conditions as A Limit of Flexible Working – The Effects of The Green Paper Through The Example of Hungary, p. 1515-1520.
20
Court was to judge a special wage system with basically discriminative elements. In our opinion the results of this analysis are useful from aspects of both labour law and HRM.
According to the statement of facts the employee – B. F. Cadman – worked for the employer for a longer time, more than ten years. The principles and methods of remuneration have changed several times in less than ten years. From the viewpoint of HRM it is interesting that at making the aspects of pay classification the employer applied different or even contradictory principles, and the basis of the employee’s complaint was that the her wage was changed in part on the basis of the work experience gained at the employer, and in part on the basis of work-performance.21
So the aspects of wage establishment and pay classification themselves can raise the breach of the principle of equal pay for equal work, but further worries emerge because the plaintiff is a woman and her colleagues in comparable situation are men.
Naturally, the basis of the legal dispute was that the plaintiff’s wage was smaller than her male colleagues’ because of the aspects of wage establishment.22
This problem highlights such a typical phenomenon in relation to remuneration as a possible HRM-element, which essence is workplace discrimination against women, consequently it is questionable whether the fundamental labour and social guarantees of the principle of equal pay for equal work can help to win this kind of discrimination that very often occurs. All this should be placed in the system of the employer’s basically expedient and efficient functioning and HRM-policy.
In the beginning the wage system was based on incremental rise, so all the employees enjoyed wage increase until they reached the highest level of wage in the given classification. In this wage-system the employees’ – also the plaintiff’s – wages raised in the same periods and practically keeping in mind the same final sum, even if not necessarily at the same measure. The differences between the wages originated from the different classifications what is a lawful reason for differences, since the employees of different levels of classification basically are not in comparable situation. Later the employer modified these conditions and introduced a new performance-related waging element. The former system took as a basis the time worked for the employer. It did not mean that in the future the only condition of wage-rise would be the employees’ performance, but the sum regular yearly wage-rise could be corrected so that the real sums would reflect the employee’s performance and not only the automatic possibility of promotion within the grade.23
It is of high importance from the point of HRM that this way the employees became more motivated since the employees had financial interests in higher level of performance. In this system the decrease between the differences of the wages of employees with more or less experiences became slower, so the wage system is mainly built on the employee’s experience gained at the employer. Later the system of remuneration was modified again and the employees at the lowest wage level got greater sum as regular yearly wage-rise, so advance in the grade became quicker.24 Later the system of remuneration was modified again and the employees at the lowest wage level got greater sum as regular yearly wage- rise, so advance in the grade became quicker.25
It is clear that the wage system applied at this employer is a structure of several elements in which diversification in the same grade and classification is possible on the basis of the employee’s personal circumstances, mainly work experience. The main legal problem of the case was exactly this fact, because according to Miss Cadman this wage system committed direct gender discrimination against her, since she got definitely smaller wage than her marked four male colleagues in spite of the fact that in her opinion she made work of equal value.
Furthermore, the marked male colleagues belonged to the same grade of classification like Miss Cadman, the only important difference between them was that all four of them had greater experience than the plaintiff, and at the same time they also worked for the employer at lower positions and they gained their work experiences not only in the position at the debated period of time. The Court had to judge whether exclusively the experience – gained in part in another work position – can be the basis of justified differences between wages in spite of the fact that the employees do work of equal value.
21
Points 14-16 of the judgment.
22
Point 14 of the judgment.
23
Point 13 of the judgment.
24
Point 13 of the judgment.
25
It should be added that the Court in the Danfoss judgment26 dealt in details with this question and concluded that the employer does not have to justify the differences originating from the application of criterion of service time, so we may conclude that the employer legally makes differences between the wages of employees with different work experience. The employer has the possibility of defining work experience as one of the defining elements of remuneration what is of great importance from the viewpoint of aspects of HRM and motivation.
According to the standpoint of the court appealing for preliminary ruling – Court of Appeal – basically the employer’s wage system takes into consideration the employees’ work experience, consequently they are the basis of the differences between remunerations. It is added that at the employer the women employees in general have less service time than men, consequently, wage systems operated this way is disadvantageous against women.27 Practically, it can be qualified as indirect discrimination based on gender,28 because there is a “substantive notion of equality.”2930
The national court – besides the above mentioned Danfoss-case – refers to the judgments in Gerster31, Nimz32, Hill and Stapleton33 cases34 emphasizing that in a given case objective justification of different pay may emerge even if the cause of the difference is the employees’ different work experiences.35
So the first question of the Court of Appeal refers to that regarding the principle of equal pay for equal work on condition that service time is a defining element of the measure and way of remuneration and it has different effects on women and men employees, whether the employer has to justify these criteria objectively, basically, it may be contradictory with the interpretation of the Danfoss-case. Secondly, it is questionable whether we come to different conclusions if the employer has to value the acquired longer service time individually examining whether the acquired longer service time can justify the higher wage.36
According to the Court the employer has to justify the different pay for equal work, since it is quite contradictory to the principle of equal treatment.37 Justification must be based on objectivity and legal aims.38 The employer can product such objective justification efficiently if the referred aspects of remuneration are not related to discrimination in any other way, so at the present case it has no relation to the gender of Miss Cadman and her four male colleagues in comparable situation. In the points 33 and 34 of the judgment the Court declares the interpretation, which is the most important one regarding HRM: though different pay on the basis of the measure of the service time can make differences (it is not necessarily justified) between female and male employees,
26
C-94/10. Danfoss A/S and Sauer-Danfoss ApS v Skatteministeriet [2011] ECR I-9963.
27
Point 20 of the judgment.
28
In connection with indirect discrimination see: TOBLER, C. A Case Study into the Development of the Legal Concept of Indirect Discrimination under EC Law, p. 57.
29
Point 23 of the Opinion of General Advocate Poiares Maduro, 18/05/2006.
30
See: PRECHAL, S. Equality of treatment, non-discrimination and social policy: achievements in three themes, p. 533.
31
C-1/95. Hellen Gerster v Freistaat Bayern [1997] ECR I-5253.
32 C-184/89. Helga Nimz v Freie und Hansestadt Hamburg [1991] ECR I-0297.
33 C-243/95. Kathleen Hill és Ann Stapleton v The Revenue Commissioners and Department of Finance [1998] ECR I-3739.
34
Point 23 of the judgment.
35
See the Danfoss-case.
36
Point 25 of the judgment. The third question is related to part-time and full-time workers, so it falls outside the scope of this paper.
37
The Court refers to the following judgments in this regard: C-320/00. A. G. Lawrence and Others v Regent Office Care Ltd, Commercial Catering Group and Mitie Secure Services Ltd [2002] ECR I- 7325., C-43/75. Defrenne v SABENA [1976] ECR 455., C-381/99. Susanna Brunnhofer v Bank der Österreichischen Postsparkasse AG [2001] ECR I-4961., C-96/80. J.P. Jenkins v Kingsgate (Clothing Productions) Ltd. [1981] ECR 911 and C-237/85. Gisela Rummler v Dato-Druck GmbH [1986] ECR 2101. According to these judgments the Court describes the essence of the principle of equal pay for equal work or work of equal value.
38
Point 32 of the judgment and the judgment in C-170/84. Bilka - Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607.
finally it can be a legal aim, since it is an acceptance and reward of the fact that the employee with greater work experience can work better and more efficiently.
Referring to the second question of the Court of Appeal according to which this principle is not only in relation to women and men but in general in relation to all employees it is an acceptable principle, or at least this problem may emerge. In our opinion it is not sure that greater work experience will result better work automatically, and to legitimate this method generally seems risky from the viewpoint of violating the principle of equal pay for equal work.
According to the judgment39 it is not necessary that the employer should justify regarding the concrete tasks of the employee the legal differences on the basis of experience, since from another point of view the employer also arranges legally if the employer awards the longer service time itself. In point 39 of the judgment the Court – with taking as a basis similar reasons – states that the wage system applied by the employer, which besides performance takes as a basis experience on defining pay, does not violate the principle of equal pay for equal work.
Finally, the Court concluded that as main rule the employer can “automatically” award differently the employees’ job performance of equal value in case the greater work experience and – possible – better performance is awarded. The only exception is when the employee can present such evidences which doubt these facts and regarding the functioning principles of the wage system and discrimination between the employees is emphasized instead of awarding experience. We cannot speak about such doubts in case of Miss Cadman.
Regarding the aspects of HRM it is important that the Court states if the given job classification system is based on the employees’ performance, the employer does not have to justify that in the given period the employee gained such experiences which result better, more efficient job performance; if the wage system itself is based on the aspects of both performance and experience, the employer does not have to justify the legality and adequacy of these aspects individually referring to all the employees, since the classification is based objectively and is built for legal aims.
4. CONCLUSION
Generally, the market expectations if they are based on such planned processes as HRM may have law-making role, namely, the processes of the labour market – without accepting that economic processes define the content of labour law – through the contractual freedom of the parties they gain/receive a role substituting the itemized law. Besides all these legislative mechanisms in the circle of fundamental rights in pay the aspects of HRM may be important, since a planned, structured wage system may result justified differences between the employees even taking into consideration the principle of equal wage for equal work. The wage structure ensuring ground for the motivation is a manifold complex system which fixes the legal differences from the viewpoint of equal treatment.
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C-184/89. Helga Nimz v Freie und Hansestadt Hamburg [1991] ECR I-0297. C-96/80. J.P. Jenkins v Kingsgate (Clothing Productions) Ltd. [1981] ECR 911 C-237/85. Gisela Rummler v Dato-Druck GmbH [1986] ECR 2101.
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Act I of 2012 on the Labour Code (Hungary)
Contact information:
Dr. PhD Henriett Rab, Associate Professor [email protected]
University of Debrecen Faculty of Law Kassai út 26. ÁJK C/109/A-B.
4028 Debrecen Hungary
Dr. PhD Márton Leó Zaccaria, Assistant Lecturer [email protected]
University of Debrecen Faculty of Law Kassai út 26. ÁJK C/109/A-B.
4028 Debrecen Hungary