The Bulgarian Industrial Capital Association (BICA) consistently supports the principle of equal pay for equal work and work of equal value. Non-discrimination in pay is a fundamental principle of both European and Bulgarian labor and anti-discrimination law.
BICA participates in the working group of the MLSP and supports the approach that the main regulation should be located in the Protection against Discrimination Act, insofar as the matter is related to anti-discrimination law. For the same reasons, we consider it correct that the competent authority for the implementation of the regime should be the Commission for Protection against Discrimination.
At the same time, we believe that the transposition of Directive (EU) 2023/970 should be carried out proportionately, predictably and without introducing additional national requirements that do not directly arise from the directive. In the conditions of labor shortages, increased costs and increased international competition, any new administrative burden should also be assessed through the prism of the competitiveness of Bulgarian enterprises.
We positively assess the planned delayed entry into force of the provisions on reporting and joint assessment, as well as the fact that enterprises with up to 99 employees do not fall within the scope of the periodic reporting obligation. This approach should be maintained and the regime should not be extended beyond the minimum necessary for the transposition of the directive.
The Bulgarian economy is an economy of micro, small and medium-sized enterprises. It is they who bear the brunt of the accumulation of regulations, because they do not have specialized administrative, legal and HR units.
Therefore, the draft law should be refined in the following main areas:
I. General approach to transposition
BICA believes that transposition should remain in the minimum necessary scope, without expanding the scope beyond the subject matter of Directive (EU) 2023/970. The law should contain clear and unambiguous definitions that allow for practical and predictable implementation by employers.
It is particularly important to distinguish between the criteria by which it is assessed whether the work is equal or equivalent and the criteria by which the employer can justify differences in pay. Not every difference in pay is the result of discrimination. In practice, differences may arise from professional experience, qualifications, individual performance, productivity, market conditions or other objective factors unrelated to gender.
The new rights to information should be regulated in a way that ensures transparency, without leading to the disclosure of personal data, individual remuneration, commercial information or internal mechanisms for managing remuneration outside the purposes of the law.
II. Regarding the definition of “level of pay”
In the draft, the concept of “level of pay” is linked to the annual gross remuneration and the corresponding gross hourly remuneration. This regulation needs to be clarified, as it is not sufficiently clear which components of remuneration are included in the formation of the indicators.
In production, trade, services, project activities and systems with bonus or performance-related pay, a significant part of the income may depend on individual results, sales, a specific project, client portfolio, specific working conditions, overtime or night work, temporary campaigns, bonuses or one-off payments.
In the absence of a distinction between permanent elements of remuneration and variable, one-off or performance-related payments, there is a risk of statistical distortions and incomparable data. The law should clearly take into account this difference so that temporary, market-related or individually achieved remunerations are not interpreted as an unjustified difference in remuneration.
III. Regarding the criteria for equal work and justification of differences in remuneration
The draft provides for criteria related to the complexity, burden, responsibility and working conditions. These criteria are appropriate in assessing whether two types of work are equal or equivalent, but they are not sufficient to cover all objective reasons for differences in remuneration between workers and employees performing the same or similar work.
Remuneration is formed under the influence of many factors that are not discriminatory: professional experience, qualifications, specialized skills, certificates, productivity, individual results, quality and quantity of work performed, additional responsibilities, autonomy, bonus or project schemes, market shortages of specific competencies, regional differences and contribution to the results of the enterprise.
Therefore, the legislation should clearly take into account the possibility for the employer to justify the differences by objective, gender-neutral criteria. Otherwise, there is a risk that legitimate and economically justified differences will be treated as alleged discrimination.
IV. On the right to information of workers and employees
BICA supports the right of the worker or employee to receive information about his or her own remuneration and about the average levels of remuneration for workers and employees who perform the same or equivalent work, insofar as this is a requirement of the directive.
However, the implementation of this right should be clear, balanced and practically applicable. It should not become a source of disproportionate administrative burden, a means of collecting information outside the purposes of the law or a mechanism for disclosing individual remuneration.
It is necessary to ensure a balance between transparency, the protection of personal data, commercial information and fair employment relations. Especially in small structural units or single specialized positions, excessively detailed information can directly or indirectly identify specific remuneration. Therefore, the possibility of aggregating and anonymizing the data and using it solely for the purposes of equal pay should be ensured.
V. On the accessibility of information for persons with disabilities
BICA supports the principle that information related to pay transparency should be accessible to persons with disabilities. At the same time, this obligation should be clear, foreseeable and practically enforceable.
The Directive requires accessibility, but this requirement must be applied in compliance with the principles of reasonableness, proportionality and technical feasibility. In the absence of standards, guidelines and practical criteria, employers, especially micro and small enterprises, may be placed in legal uncertainty as to the scope and manner of implementation.
It is necessary for the competent institutions to provide clear guidelines, templates and methodological support so as to achieve effective access for persons with disabilities, without creating unclear and excessive obligations for businesses.
VI. Regarding the 5% difference, joint assessment of pay and sanctions
The draft provides that in the event of a difference of at least 5% in the average level of pay between women and men in a certain category of workers and employees, the employer shall provide justification, and in the absence of sufficient justification and failure to take action, a joint assessment shall be initiated.
The BICA emphasizes that a statistical difference of 5% in itself cannot be accepted as evidence or an indication of discrimination. Such a difference may arise from professional experience, individual performance, productivity, qualifications, bonus schemes, market conditions, different degrees of responsibility or participation in specific projects.
The joint assessment implies the participation of more than one party, including representatives of workers and employees. Therefore, it is problematic that the risk of sanctions is concentrated practically entirely on the employer, including in cases where the procedure is difficult or blocked for reasons beyond its control.
The sanction regime should distinguish formal and technical violations from actually established discrimination. Technical delays, incomplete reports, calculation errors, difficulties due to unclear methodology and proven discrimination in pay cannot be treated in a similar way.
The sanction should be a last resort for significant and proven violations, and not the first tool for implementing the new regime. When the requirements are initially introduced, priority should be given to prevention, methodological support and voluntary elimination of gaps.
VII. Regarding the transitional periods and the role of the Commission for Protection against Discrimination
BICA supports the postponed entry into force of the provisions on reporting and joint assessment. However, the transitional period must be accompanied by timely actions by the state: clear methodologies, practically applicable instructions, unified templates and electronic tools.
The new regime involves the collection, processing and analysis of a significant amount of information, the definition of categories of workers and employees, the protection of personal data and the organization of internal procedures. Without prior methodological and technical preparation, employers will find it difficult to fulfill their obligations in a uniform and predictable manner.
We support the decision to make the Commission for Protection against Discrimination the competent authority. However, the role of the Commission should not be limited to control and sanctions. An active methodological, consultative and preventive function is needed, including guidelines, templates, training and the possibility of correcting identified shortcomings before sanctions are imposed.
When exercising control powers, the specific context, the size and administrative capacity of the employer, the actions taken for implementation and the degree of actual impact on the rights and interests of workers and employees should be taken into account.
BICA supports the principle of equal pay, but insists that the transposition of Directive (EU) 2023/970 should not become a disproportionate administrative burden for enterprises. The draft law should take into account the specifics of the real economy, the different remuneration systems and the many objective factors that may determine differences in pay.
It is necessary to avoid automatically equating any statistical difference with discrimination, to guarantee the protection of personal data and individual remuneration, to provide clear methodologies and practically applicable instructions, as well as a proportionate sanction regime.
Only with such an approach can a balance be achieved between the implementation of European requirements, effective protection against discrimination and preserving the competitiveness of Bulgarian enterprises.
Read the full text of the opinion here.
