Article 28.2 of the Workers' Statute does not require the inclusion of data that allows identifying the individualized remuneration of a worker

Commentary on Supreme Court Ruling 1302/2024, of 21 November

Abstract

The Supreme Court Ruling 1302/2024, of November 21, states that article 28.2 of Workers' Statute does not impose the obligation on companies to include data that allows identifying the individualized remuneration of a worker. This interpretation contradicts that of Ruling
of the Audiencia Nacional 69/2023, which annuls. Its direct consequence is to prevent interested unions from accessing certain individualized values in positions with a single person (woman or man) or with two people (a woman and a man, or two women, or two men) through the remuneration registry. The main considerations of the decision are four: first, article 28.2 of Workers' Statute and article 5 of Royal Decree 902/2020, as well as other concordant ones, refer at all times to "average values", at no time do they refer to "individualized values"; second, Directive 2023/970 is also full of references to "average" remuneration levels and, when it contemplates the possibility of the representation of workers having access to the remuneration of an identifiable worker, it requires specific guarantees to avoid its disclosure; third, as article 28.2 of Workers' Statute does not establish the obligation examined, our legal system lacks the norm with the status of law required by article 8.1 of Organic Law 3/2018;
and fourth, derived from the above, article 28.2 of Workers' Statute does not establish
the specific guarantees to avoid the disclosure of individualized remuneration values, nor the security measures provided for in article 8.1 of Organic Law 3/2018. The judgment completely ignores the security provided by the duty of secrecy that must be fulfilled by the representation of workers (art. 65 Workers' Statute) and the negotiating commission of the equality plan
(art. 5.8 Royal Decree 901/2020).