Chapter II. Scope and requirements of the Equal Remuneration Convention and Recommendation

13. Convention No. 100 and Recommendation No. 90 list a number of measures to be taken to promote, ensure, encourage or facilitate "the application of the principle of equal remuneration for men and women workers for work of equal value". In the present chapter, the Committee recalls the scope of this principle, starting from the definitions of the terms involved before examining the roles of governments and employers' and workers' organisations in the application of the principle.

Section 1. Definitions

(a) Remuneration

14. According to Article 1, paragraph (a) of the Convention, "remuneration includes the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker's employment". This definition, which is couched in the broadest possible terms, seeks to ensure that equality is not limited to the basic or ordinary wage, nor in any other way restricted according to semantic distinctions.

15. Additional emoluments. The term "any additional emoluments whatsoever" brings within the ambit of the Convention, elements as numerous as they are diverse. During the preparation of the Convention, consideration had been given to enumerating more specifically the elements which, in addition to the ordinary, basic or minimum wage or salary, should be considered an integral part of remuneration for the purposes of the Convention and which should accordingly be paid without discrimination based on sex. In the event, however, the competent Conference committee preferred to accept the all-embracing phrase "any additional emoluments whatsoever" over such formulations as "any increment, supplement, margin, bonus, allowance or other addition" and "all the benefits and advantages". (Endnote 1) Thus, remuneration under the Convention includes, inter alia, wage differentials or increments based on seniority (Endnote 2) or marital status, (Endnote 3) cost-of-living allowances, (Endnote 4) housing or residential allowances, (Endnote 5), (Endnote 6) and family allowances, (Endnote 7), (Endnote 8) paid by the employer, and benefits in kind such as the allotment and laundering of working clothes. (Endnote 9)

16. Indirect elements of remuneration. The addition of the words "directly or indirectly" in the definition of remuneration in the Convention was designed to include certain emoluments which are not payable directly by the employer to the worker concerned -- for example, holiday allowances paid out of a common fund managed by employers or workers. (Endnote 10) In considering the coverage of the definition in Article 1, paragraph (a), it is not necessary, therefore, to determine whether particular considerations received by workers are made directly by employers or whether they are granted indirectly. The Convention covers all components of remuneration -- direct and indirect -- which arise out of the employment relationship. This points to the importance to be attached to the phrase "arising out of the worker's employment" in delimiting the scope of the Convention.

17. "Arising out of the worker's employment" -- the case of social security. The importance of the link between a worker's employment and payments to be considered under the Convention becomes particularly evident in the case of social security contributions and benefits. During the preparation of the 1951 instruments, the competent Conference Committee noted that allowances paid under social security schemes financed by the undertaking or industry concerned were part of the system of remuneration in the undertaking and were one of the elements making up wages in respect of which there should be no discrimination based on sex. (Endnote 11) On the other hand, allowances made under a public system of social security were not to be considered as part of remuneration (Endnote 12) and an amendment to add all social security benefits to the items included in remuneration was withdrawn after having been opposed on the ground that in certain countries social security benefits did not form part of remuneration. (Endnote 13) It thus appears that a distinction was made between social security schemes financed by the employer or industry concerned -- which were meant to be covered by the Convention -- and benefits under "purely" public social security schemes which were considered outside its scope. (Endnote 14)

(b) Workers

18. The Convention refers to "all workers" and "men and women workers". During the preparation of the Convention, a proposal to insert a provision to specify that the Convention should apply to "all wage earners and salaried employers, irrespective of the branch of economic activity in which they are employed" and enumerating a number of such branches was rejected after being opposed on the ground that the text already covered all workers and that any enumeration would involve a risk of omissions. (Endnote 15) As the Committee concluded in paragraph 170 of its 1975 general survey on equal remuneration, "the rule must be that the equal pay principle shall apply everywhere".

(c) Work of equal value

19. Under the Equal Remuneration Convention and Recommendation of 1951, following the words of the Preamble to the ILO Constitution, equal remuneration for men and women workers is to be established "for work of equal value". Thus, unlike a number of other instruments on equal treatment, the ILO standards go beyond a reference to "the same" or "similar" work, in choosing the "value" of the work as the point of comparison.

20. Criteria. According to Article 1 (b) of the Convention, the term "equal remuneration for men and women workers for work of equal value" refers to rates of remuneration established without discrimination based on sex. While clearly excluding any consideration related to the sex of the worker, this definition provides no positive indication as to how the "value" of work is to be determined. In preparation of the 1951 instruments, the Office report examined three categories of possible criteria: relative performance of men and women on comparable work, cost of production or overall value to the employer, and finally, "job content". (Endnote 16) This last approach had "proved most satisfactory for all concerned," (Endnote 17) and the text of proposed conclusions prepared by the Office defined the phrase "equal remuneration for men and women workers for work of equal value" as meaning that "remuneration rates shall be established on the basis of job content no discrimination being made on the basis of the sex of the worker". (Endnote 18) Following a discussion in the competent Conference Committee, (Endnote 19) the reference to "job content" was eliminated from the definition of work of equal value in Article 1 (b) of the Convention and transferred to a separate provision on the objective appraisal of jobs on the basis of the work to be performed, which became Article 3 of the Convention.

21. Job evaluation. Article 3, paragraph 3 of the Convention complements the purely negative definition in Article 1 (b) ("without discrimination") by specifying that "differential rates between workers which correspond, without regard to sex, to differences, as determined by such objective appraisal, in the work to be performed shall not be considered as being contrary to the principle of equal remuneration ... for work of equal value". The Convention does not provide an unconditional obligation to take measures for the objective appraisal of jobs on the basis of the work to be performed, and even less imposes the choice of a particular job evaluation method; (Endnote 20) but it follows from Article 3, paragraph 3 that some form of objective appraisal of jobs on the basis of the work to be performed is the only method set forth in the Convention for differentiating wages in conformity with the principle of equality. As the Committee concluded in paragraph 168 of its 1975 general survey, adoption of the idea of work of equal value necessarily implies some comparison between jobs; when the value of different jobs has to be compared, there should exist appropriate machinery and procedures to ensure an evaluation free from discrimination based on sex.

(d) Discrimination based on sex

22. Reach of comparison. The Convention does not require the abolition of differences in the general wage level between various regions, sectors or even enterprises where such differences apply equally to men and women. However, as the Committee pointed out in its 1975 general survey, (Endnote 21) the principle of equal remuneration for men and women workers for work of equal value extends beyond cases where work is performed in the same establishment, and beyond jobs performed by both sexes. Discrimination may first of all arise out of the existence of occupational categories and jobs reserved for women. (Endnote 22) More generally, and in spite of the difficulties associated with a broader comparison of jobs, the fact that women workers are more heavily concentrated in certain jobs and in certain sectors of activity has to be taken into account so as to avoid or redress a biased evaluation of qualities traditionally considered as "peculiar to women". In applying the principle of the Convention "by means appropriate to the methods in operation for determining rates of remuneration" (Article 2, paragraph 1), the reach of the comparison between jobs performed by men and women should be as wide as allowed by the level at which wage policies, systems and structures are co-ordinated, taking into account also the degree to which wages fixed independently in different enterprises may be based on common factors unrelated to sex.

23. Explicit or implicit discrimination. In referring to "rates of remuneration established without discrimination based on sex", the Convention covers not only open discrimination against either sex, but also cases where apparently objective criteria such as performance or job difficulty are explicitly or implicitly defined or applied with reference to the workers' sex. It connotes the elimination of all sex-based prejudice in the wage-fixing process. Thus, the Committee has emphasised in paragraph 38 of its 1975 general survey that the criterion of output, while legitimate in itself, becomes unacceptable if only women are required to show proof of their output or if different wage groups are established on the basis of the average output of each sex. Likewise, the various provisions of a protective character, such as the prohibition of certain forms of work for women, that may be laid down by laws or collective agreements cannot be invoked to justify differential wage scales. (Endnote 23) Finally, it is not sufficient to replace separate wage scales for "male" and "female" jobs by similar scales worded in neutral language but preserving both the inherited job profiles and existing wage differentials; in such cases there remains a presumption of discrimination based on sex, and job classification methods need to be replaced by new ones based on criteria having no connection with the former distinctions based on sex. (Endnote 24)

Section 2. The role of governments in the application of the principle of equal remuneration

24. Article 2, paragraph 1 of the Convention provides that each member State shall, by means appropriate to the methods in operation for determining rates or remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value. Thus, a ratifying government's obligation to ensure implementation of the principle of equal remuneration is limited to those areas where such action is consistent with the methods in operation for determining rates of remuneration, i.e. where the government is in a position to exert direct or indirect influence on the level of wages. (Endnote 25), (Endnote 26) In areas where the right to collective bargaining excludes the Government from the wage-fixing process, the government is to promote the application of the principle. (Endnote 27) Consequently, Paragraph 3(1) of the Recommendation suggests that "where appropriate in the light of the methods in operation for the determination of rates of remuneration, provision should be made by legal enactment for the general application of the principle of equal remuneration for men and women workers for work of equal value"; but there is no general obligation under the Convention to enact legislation to enforce the principle of equal remuneration. According to Article 2, paragraph 2 of the Convention, the principle may be applied by means of national laws or regulations, legally established or recognised machinery for wage determination, collective agreements or a combination of these methods. Under Article 4, each Member shall co-operate as appropriate with the employers' and workers' organisations concerned for the purpose of giving effect to the provisions of the Convention.

(a) Scope of the State's obligation to ensure the application of the principle of equal remuneration

25. A State having ratified the Convention is obliged to ensure the application of the principle of equal remuneration wherever such action is consistent with the methods in operation for determining rates of remuneration, that is, principally, in the following cases: where the State is the employer or otherwise controls business; where the State is in a position to intervene in the wage-fixing process, i.e., principally, where the rates of remuneration are subject to public control or statutory regulation, and where there is legislation bearing on equal treatment in the field of remuneration.

26. State employment or control over business. A State's obligation to ensure the application of the principle of equal remuneration for work of equal value to its own employees follows from Article 2, paragraph 1 of the Convention and is reflected in Paragraph 1(a) of the Recommendation, which refers to "all employees of central government departments or agencies", and in Paragraph 2(b), which refers to "industries and undertakings operated under public ownership". Two other forms of public control over business which put the authorities in a position to influence the employer to ensure the application of equal remuneration under the Convention are also mentioned in the Recommendation: industries and undertakings operated under public control (Paragraph 2(b)) and, where appropriate, work executed under the terms of public contracts (Paragraph 2(c)).

27. State intervention in the fixing of wages. To the extent to which the State intervenes in the field of wage-fixing, the government is barred from referring to the principle of free collective bargaining and thus becomes responsible under Article 2, paragraph 1 of the Convention for ensuring the application of equal remuneration. One example is mentioned in Paragraph 2(a) of the Recommendation: "the establishment of minimum or other wage rates in industries and services where such wage rates are determined under public authority". Similarly, where the binding force of collective agreements establishing wage rates is extended by state authority to workers or enterprises which were not represented by the parties to the agreement, the State becomes responsible for ensuring the observance of the principle of equal remuneration. (Endnote 28)

28. Legislation bearing on equal treatment. While there is no general obligation to enact legislation under the Convention, which may also be applied by other means according to Article 2, paragraph 2, it follows from Article 2, paragraph 1 that any existing legislative provision which violates the principle of equal remuneration must be amended so as to comply with the Convention. Furthermore, legislative action by the State for the protection of equality may extend the government's competence to intervene in the field of wages and, hence, widen the scope for ensuring application of the principle under Article 2, paragraph 1 of the Convention. Many ratifying States have in fact enacted statutory instruments on equal rights or equal treatment applicable to remuneration in areas where wages are fixed without the participation of the authorities. Where binding provisions of the national Constitution or legislation already impose general observance of the principle of equal remuneration for work of equal value, the State is in a legal position to enforce the principle and thus responsible for ensuring its application under Article 2, paragraph 1 of the Convention. (Endnote 29)

(b) Scope of the State's obligation to promote the application of the principle of equal remuneration

29. Wherever the State is not in a position to ensure the application of the principle of equal remuneration, (Endnote 30) it must promote its application under Article 2, paragraph 1. The great flexibility allowed by the Convention in adapting the means of application of the principle of equal remuneration to the wage-fixing methods in operation in the country has its obvious counterpart in the principle that governments must act in good faith and must not try to elude their obligations on the pretext that they are prevented from interfering in the wage-fixing process. The obligation to promote the application of the principle, under Article 2, paragraph 1, as well as the obligation to co-operate with the employers' and workers' organisations concerned for the purpose of giving effect to the provisions of the Convention (Article 4) call for positive action. The Convention and Recommendation both refer to a variety of means by which the application to all workers of the principle of equal pay for work of equal value is to be furthered, where appropriate. These will be considered in Chapter IV below.

30. While the Convention is flexible regarding the choice of measures to be taken for its implementation, it allows no compromise regarding the objective to be pursued. Thus, various proposed "saving clauses" to take account of the financial and economic conditions of countries were rejected by the competent Conference Committee when preparing the Convention; (Endnote 31) likewise, it has been noted that the number of women employed in a given sector of the economy cannot justify an exception from the principle of equal remuneration for work of equal value. (Endnote 32)

Section 3. The role of employers' and workers' organisations

31. Reference has already been made (Endnote 33) to the obligation of ratifying States, under Article 4 of the Convention, to co-operate with the employers' and workers' organisations concerned for the purpose of giving effect to the provisions of the Convention. The Recommendation provides in Paragraph 3(2) for employers and workers to be fully informed as to legal requirements for the application of the principle of equal remuneration, and in Paragraphs 1, 2 and 4 for the consultation with industrial organisations with a view to the adoption of a number of measures designed to bring about the application of the principle in all occupations. Under Paragraph 5, the establishment where appropriate of methods for objective appraisal of the work to be performed is to be made or encouraged in agreement with the employers' and workers' organisations concerned, and according to Article 3, paragraph 2 of the Convention, the methods to be followed in this appraisal may be decided upon by the parties to collective agreements where wage rates are determined by such agreements. The respect displayed in the Convention for the right to collective bargaining involves, for the employers' and workers' organisations concerned, a corresponding share in the responsibility for the effective application of the principle of equal remuneration.

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Endnote 16

Endnote 17

Endnote 18

Endnote 19

Endnote 20

Endnote 21

Endnote 22

Endnote 23

Endnote 24

Endnote 26

Endnote 27

Endnote 28

Endnote 29

Endnote 30

Endnote 31

Endnote 32

Endnote 33

Legislation

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Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35