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The employer’s obligation to keep a remuneration register, or rather a record of the "average values of the salaries, salary supplements and non-wage payments of its staff, broken down by sex and distributed by professional groups, professional categories or equivalent jobs or jobs of equal value", reflected in Article 28.2 of the Workers' Statute (WS), has been developed by RD 902/2020. The regulatory provision raises many interpretative doubts about its legality, which will cause innumerable practical difficulties for companies when complying with the regulatory mandate.

Firstly, in relation to the prior consultation to the preparation of the register. Article 5.6 of RD 902 provides, in this respect, that "the legal representation of the workers must be consulted, at least ten days in advance, prior to the preparation of the register". It should be noted that the preparation of the wage register, as the law calls it, or the remuneration register, as the decree calls it, is imposed on the company (in the law, on the employer), without any requirement for negotiation with the legal or union representatives of the workers. There is no duty to negotiate in relation to the pay register, as opposed to the equality plan or the situation diagnosis (Articles 5 and 6 of RD 901/2020). Moreover, Article 28 of the WS, the legal source of the figure of the register, does not contemplate the participation of the labor representatives in its preparation, nor does it confer any rights to them. It only refers to the workers’ access to the (already prepared) register, through their legal representatives. On another note, Article 64.3 of the WS exclusively attributes a right to information to the already drawn up register referred to in Article 28.2 to the works council, while there is no reference to the register or its preparation in the works council’s powers of consultation or issuance of a report (Article 64.5 of the WS).

In contrast to this clear legal mandate, the regulation imposes consultation, prior to the preparation of the register, with the workers' legal representatives. This requirement raises serious doubts as to its legality. Consultation prior to the preparation of the register is not contemplated in Article 28 of the WS, nor is it derived from the regulation of the works council’s competences contained in Article 64 of the same legal body. As seen before, article 64.5 of the WS exclusively recognizes the workers' legal representatives’ right to receive information about the already drawn up register. The fact that a regulatory text converts a legal right to mere information (a posteriori) into a right to prior consultation probably constitutes an ultra vires regulation. It is not a case of the regulation developing a legislative mandate or specifying its application: the choice of the legislator in the WS is quite clear, conferring a mere right to information a posteriori, which the regulatory rule, without the power to do so, cannot convert into a right to prior consultation. The RD is not developing or completing the law, but rather is substantially altering and modifying its mandate.

The situation with regard to job position evaluations is no less confusing. The regulations in this respect in RD 902/2020 are particularly complex and confusing. Article 4, with respect to the legal mandate, talks about "work of equal value". Not "job positions of equal value". This is a concept that does not appear in the law (other than as a possible classification technique: Article 28.2, first paragraph in fine of the WS) and is introduced by Article 9 of RD 902/2020. Furthermore, it introduces it equivocally, since it refers to "job positions of equal value under the terms established in Article 4", when this article speaks of work of equal value and not of jobs of equal value. On the other hand, in order to decide whether one job is of equal value to another, it is necessary to refer, apart from the indications of the second paragraph of Article 28.1 of the WS, to the criteria of paragraph 2 of the same Article 4 of the RD, among which there is no mention of job positions. The law speaks of the functions or tasks, the educational, professional or training conditions required, the factors related to performance and working conditions, while the RD refers to functions, tasks, development of the activity and performance. Only in the context of the consideration of other factors relevant to performance does the RD speak of job positions (paragraph 3 of Article 4), and paragraph 4 of the same article expressly speaks of job position evaluations, but since this is a concept that does not appear in paragraphs 1 and 2, it may be thought that what it means is that, if a job evaluation system is chosen for the professional classification, such evaluation must be carried out in the terms indicated.

An analysis of article 5.2 RD, which speaks of the average and median "in each professional group, professional category, level, position or any other applicable classification system" leads to the same conclusion. Therefore, the remuneration register may include the sections of the applicable classification system (as also indicated in Article 28.2 of the WS), which may be by professional group, category, level, post or any other. For the purposes of the remuneration register, therefore, the consideration of job positions is not imposed if the classification system prevailing in the company is different.

The interpretative problem arises from Article 8.1.a) of the Royal Decree, which establishes that the diagnosis of the company's compensation situation (which is part of the compensation audit) requires "the evaluation of jobs positions", which seems to require, in contradiction not only with the law but also with other provisions of the Royal Decree, that the company's classification system be the job position evaluation system, although it states "taking into account the provisions of Article 4", which we have already seen is far from being clearly based on such a job position evaluation system. Article 6.a) of the RD also contributes to the confusion, by referring to the averages and medians of "the groupings of work of equal value in the company", but adding "in accordance with the job position evaluation described in Articles 4 and 8.1.a)", which contradicts the possibility derived from other precepts of groupings of work of equal value that are not carried out on the basis of job positions.

On the other hand, the first final provision of the RD provides for the approval of a ministerial order that will approve "a job position evaluation procedure" (the deadline for this is October 14). It should be noted that what is envisaged is the approval of a procedure, which will be indicative and not mandatory. This is also supported by paragraph 2 of the first final provision, which (confusingly: what does it mean that the order "may provide that it is complied with", is it a presumption?, an unconditional endorsement of the evaluation of job positions that follow the procedure of the order, regardless of its content?) says that if the procedure established by the order is followed, it will be understood that the formal requirements of the RD for the evaluation of job positions are complied with. It is therefore possible to proceed with a job evaluation without following the procedure established by the order, although in this case the presumption of paragraph 2 of the first final provision will not apply.

Finally, the provisions of Article 9 of the RD in relation to collective bargaining must be taken into account. The mandate of the regulation is certainly confusing: reference is made to the classification system provided for in the WS (by professional groups, although the classification by categories has been revived and reference is made to classification by levels and by job positions), and to the fact that this system must respect the principle of equal pay for work of equal value. But then it adds that the negotiating tables of the agreements "shall ensure" (what does this mean, does it have to be reflected in some way in the content of the agreement?, does it have to be registered in the minutes?, is it sufficient for the parties to state that they have ensured this?) that the concurrent factors and conditions in each of the professional groups and levels "respect the criteria of appropriateness, completeness and objectivity, and the principle of equal pay for work of equal value in the terms established in article 4". Regardless of the fact that Article 4 speaks of equal pay for work of equal value, not for job positions of equal value, it seems that, whatever the company's classification system, the jobs and their evaluation must be detailed. This lacks legal coverage, violates the principle of freedom of enterprise and contradicts the professional classification regulations of the WS. A company that bases its classification on professional groups and levels could use this rule to state in collective bargaining that, in the assignment of pay levels associated with such classification, the principles of equal pay for work (and job positions) of equal value are respected, in accordance with the criteria set out in paragraphs 3 and 4 of Article 4 of the RD, without the need to implement a job classification system and assign each worker to a specific job.