Chapter III. Constitutional and legal provisions giving general effect to the principle

Section 1. Constitutional provisions

32. The information supplied by a number of countries refers to provisions of the national constitution or fundamental law as the basis of national policy to implement the principle of equal remuneration for men and women workers. There are, however, certain differences from one country to another in the terms used and in the extent to which they correspond to the Convention. Moreover, considerable variation is to be found in the extent to which constitutional provisions may be invoked to enforce directly the principles they proclaim and as to whether the guarantees they set are binding on public authorities only or have a direct bearing also on the relationships between individuals.

33. The constitutions of some countries contain provisions stating that all citizens (Endnote 1) or all persons (Endnote 2) are equal in general terms which may be interpreted to include equality for women and men. Many constitutions are more specific and prohibit discrimination, inter alia, on the basis of sex or require equal rights for women and men generally. (Endnote 3) A significant number of constitutions expressly prohibit discrimination against women in employment often in terms which call for equality in respect of their economic and social rights. (Endnote 4) In some cases, the economic and social fields in which women are to be ensured equal rights and opportunities are spelled out in greater detail, listing among other matters remuneration, while "pay in accordance with the quantity and quality of work" is mentioned as a general principle in connection with the right to work. (Endnote 5)

34. The principle of equal remuneration is stated explicitly in the constitutions of many countries; the formulation "equal pay for equal work" is most often encountered, sometimes without reference to the sex of the worker (Endnote 6) but in the majority of cases specifying for men and women, (Endnote 7) or complemented by a separate prohibition of discrimination based on sex. (Endnote 8) While the terms "equal pay for equal work" do not necessarily appear to guarantee a field of comparison as wide as if they referred to "work of equal value", they may be applied in that sense. Both constitutional provisions on equal rights in general for men and women and on equal pay for equal work have in fact been interpreted by the courts (Endnote 9) or developed in legislation in the sense of the principle of "equal pay for work of equal value". This has even occurred where a constitutional guarantee of equal remuneration is limited to "the same work". (Endnote 10)

35. In various constitutions, the principle of equal remuneration for equal work has been specifically linked to volume, nature and quality of the work, (Endnote 11) or to equality of efficiency, (Endnote 12) seniority, (Endnote 13) working time and the post (Endnote 14) and more generally to equal conditions (Endnote 15) or identical conditions and the same employer or establishment. (Endnote 16) Elsewhere, the principle of the Convention, "equal remuneration for work of equal value" (Endnote 17) or a prohibition of differences in wages and criteria of engagement based on sex (Endnote 18) are written into the national constitution.

36. The legal and practical bearing of constitutional guarantees of equal treatment or equal remuneration varies considerably. According to the letter and intent of the provision itself and the constitutional and legal system of the country, the guarantee of equality may set the framework for legislative action or may also be directly invoked in the courts; it may be aimed at the public authorities as part of the executive branch or as employers, and it may also govern private employment.

37. Among the constitutions guaranteeing in general terms the equality of citizens of either sex, a certain number specify that all citizens shall have equal access to, or equal opportunity in respect of, public employment and office. (Endnote 19) Elsewhere, it is stated that every citizen shall have access, on equal terms, to every job and every function in society. (Endnote 20) In general, those constitutional provisions referring to equal remuneration (Endnote 21) or equal rights in the economic and social sphere (Endnote 22) are drafted in terms applying both to public and private employment. However, in certain cases such provisions are not self-executing but call on the State (Endnote 23) or the legislature (Endnote 24) to ensure equal pay for equal work; occasionally, it is explicitly stated that a constitutional provision calling for laws to ensure equal remuneration (throughout the economy) shall not be enforceable by any court, while the same constitution guarantees equality of opportunity for all citizens in employment under the State, and non-discrimination by the State on grounds of sex, under separate provisions which are to override any contrary laws and thus be fully enforceable. (Endnote 25)

38. Often, the constitutional guarantees of equal remuneration or equal treatment in employment in general appear to be directly applicable, but the fact that in most cases the constitutional principles have been restated and developed in ordinary legislation no doubt accounts for the fact that few governments have supplied information on court action based directly on the constitution. Nevertheless, in certain countries, court decisions based directly on constitutional provisions considered self-executing have played an important role in applying the Convention and in developing more detailed principles which were mostly later included in legislation.

39. In its 1975 general survey (paragraphs 26 to 28), the Committee mentioned the cases of the Federal Republic of Germany and Italy, where constitutional provisions guaranteeing men and women more generally equal rights (Endnote 26) or equal pay for equal work (Endnote 27) were drawn upon by the courts to establish the principle of equal remuneration for work of equal value in the sense of the Convention as a mandatory right which binds the State and the social partners and may be relied upon by anyone before the courts in regard to any wage-fixing statute or collective or private agreement. In both countries, the jurisprudence developed by the courts responsible for applying the constitutional provisions has now been consolidated in legislation concerning equal pay and equal treatment for men and women in employment (see paragraph 49 below). In Greece, the Council of State recently ruled, on the basis of the principle of equal remuneration as laid down in article 22(1) of the Constitution, that an award granting a marriage allowance to men and women under the same conditions, but excepting women whose husbands worked for the same company or the State was null and void. (Endnote 28) In Switzerland, where the Constitution remains the basis for applying the principle of the Convention, a general provisions of the Constitution concerning equality before the law was supplemented in 1981 by a provision under which "men and women shall be entitled to equal wages for work of equal value". Although the provision is considered self-executing and has been drawn upon in court practice (Endnote 29), a parliamentary initiative has been introduced with a view to ensuring legislative application of the principle.

Section 2. Legislative provisions

A. General developments

40. The trend to make provision by legal enactment for the general application of the principle of equal remuneration -- already notable in 1975 (Endnote 30) -- has continued over the past decade, leaving out but a minority of countries. Some countries rely, for the time being, on constitutional provisions to guide government policy and programmes and wage-fixing bodies. (Endnote 31) One ratifying State (Endnote 32) and a few others not bound by the Convention (Endnote 33) have indicated in their reports that there was at present no legal enactment for the general application of the principle of equal remuneration, which was, however, government policy. Some governments have referred to general labour legislation which, although its provisions apply implicitly (Endnote 34) or explicitly (Endnote 35) to men and women without distinction, does not positively call for observance of the principles of equal treatment or equal remuneration.

41. The Convention requires the principle of equal remuneration to be complied with by national authorities in their field of competence, including legislation, but does not impose the principle to be restated as such in national legislation. This however is contemplated in paragraph 3(1) of the Recommendation, according to which "provision should be made by legal enactment" for the general application of the principle "where appropriate in the light of the methods in operation for the determination of rates of remuneration". Wherever rates of remuneration are determined otherwise than through the law itself, it appears that the mere neutrality of the law does not afford protection against discrimination in remuneration, and accordingly, the great majority of countries have now written the principle of equal remuneration into legislation. There is, however, a certain variety of approaches regarding the concepts and definitions used, the scope of the law and last but not least, the means provided for its implementation.

42. In a number of countries, the definitions used to ensure equality have not only come closer to those of the Convention over the last decade but have also become more practical leading up to more objective criteria for evaluating jobs and defining more concretely what is discrimination as well as remuneration. Furthermore, while the majority of countries have now written the principle of equal pay into their labour codes, a growing group of States have enacted special legislation, being often of wider application, and establishing special machinery for translating the principle into practice. Many difficulties often encountered in realising equal remuneration for work of equal value (e.g., with regard to the evaluation of practically segregated jobs, or the attribution of benefits such as family or housing allowances) are intimately linked to the general status of women and men in employment and society; it is therefore not surprising that most of these States have rapidly broadened the scope of their relevant legislation to deal not only with pay, but comprehensively with all aspects of equality of opportunity and treatment for men and women related to employment.

43. A comparison between the following survey of legal developments and the review in Chapter V, reflecting the governments' indications on progress and problems noted in the practical implementation of the principle of equal pay, will confirm a paradoxical observation made by the Committee over the years in supervising the application of the Convention: quite often, a relative scarcity of national standards for the general application of the principle corresponds to a situation where for years its implementation in practice is not considered to call for further action; once such action gets under way, however, and the further legal tools for implementing the principle are developed, the more the existence of problems in practice may be brought to the surface, thus initiating true progress. The participation of employers' and workers' organisations, as well as public authorities, plays a crucial role in this development.

B. Concepts of equality

44. In its 1975 general survey (Endnote 36) the Committee set out various definitions used in national legislation to compare the work of men and women, ranging from the "same work" or "equal work" to "work of equal value". While the number of laws adopting the equivalence concept of the Convention has increased considerably over the past decade, some texts limit the scope of comparison to the "same" work, others extend it to "same or similar" work, and many definitions in national legislation still refer to "equal work" (or have been so translated). Due to the ambiguity of the term "equal" which may be interpreted narrowly as "same", or as "like in quality, nature or status" or as "identical in value", great importance attaches to the specific criteria often referred to in this connection by the law in order to compare either job requirements or the work actually performed. For the sake of convenience, the basic definitions at present in force are set out below according to the formula used, such as "same work", "similar work", "equal work" or "work of equal value", while any additional criteria are wherever possible dealt with subsequently (see paragraphs 51 et seq.). Finally, since the Convention defines "equal remuneration for men and women workers for work of equal value" as "rates of remuneration established without discrimination based on sex" (Article 1(b)), separate consideration will be given to national provisions which broach the issue, not within the limits of comparing concrete jobs, but from the viewpoint of eliminating sex-based discrimination from remuneration or employment in general, sometimes developing in greater detail the concept of discrimination.

I. Comparing jobs

(a) The basic formulas: from equal remuneration for "the same work" to equal remuneration for "work of equal value"

45. Same work. A few labour codes limit the principle of equal remuneration to the same work: for "the same work" a woman worker is to be granted the same wage as a man in Kuwait. (Endnote 37) In Papua New Guinea (Endnote 38) an employer who fails to pay a female employee the same wages as a male employee "employed at the same level in the same work" is guilty of an offence. In Egypt (Endnote 39) and the Syrian Arab Republic (Endnote 40), female workers shall be subject to all the stipulations governing the employment of male workers without discrimination in the same job; in the Libyan Arab Jamahiriya, an employer shall not discriminate in wages between men and women if the conditions of work and nature of the work are the same (Endnote 41). While a reference to "same work" appears narrower than the principle of the Convention, it may in practice be interpreted as if it extended to work of equal value (Endnote 42). Such is the practice of employers' and workers' organisations in Denmark, where section 1 of the Act of 1976 respecting equal wages for men and women (Endnote 43) guarantees men and women employed at the same workplace equal wages for the same work. This provision is none the less to be formally amended in accordance with actual practice so as to make it clear that equal remuneration must be paid both for the same work and for work which is given the same value.

46. Substantially identical work. In Ghana (Endnote 44) and Israel, (Endnote 45) an employer shall pay to a female worker a wage equal to the wage paid to a male worker for "the same or substantially the same", or for "identical or substantially identical work". In Ghana, work shall be deemed to be identical or substantially identical "if the job, duties or services the employees are called upon to perform are identical or substantially identical". (Endnote 46) The Committee has asked the Government to supply information on the practical application of this provision. (Endnote 47)

47. Similar work. In Ethiopia, (Endnote 48) the same initial wage shall be paid for similar jobs in an undertaking. In a number of other countries, reference to same or similar nature of work is complemented by further criteria which are examined in paragraphs 51 to 62 below, and which may cut across the categories of same, similar or equal in value. Thus, in Ireland, the scope of "like work" ranges from "same work" to work equal in value "in terms of the demands it makes in relation to such matters as skill, physical or mental effort, responsibility and working conditions". (Endnote 49)

48. Equal work. The reference to equal remuneration "for equal work in the same service and in the same undertaking", under the Rural Labour Code (Endnote 50) still in force in Cape Verde and Sao Tomé and Principe, has been noted by the Committee to fall short of the principle of the Convention. (Endnote 51) In the Islamic Republic of Iran, (Endnote 52) Spain (Endnote 53) and the United Arab Emirates, (Endnote 54) men and women shall be paid equal remuneration "for equal work". In reply to requests for further information concerning the actual scope of this provision, the Governments of the Islamic Republic of Iran (Endnote 55) and Spain (Endnote 56) have indicated that it refers to the concept of work of equal value. In the case of Spain, this followed from the intention of the provision which was not limited to guaranteeing equality between identical work but was to avoid all discrimination in remuneration based on sex, as well as from the provisions of the national Constitution (Endnote 57) and the Convention which was part of the national legal order. Furthermore, the Government referred in this connection to the complementary role of objective job evaluation systems; information on the methods of job evaluation has also been supplied by the Islamic Republic of Iran. In many other countries, legal provisions referring to "equal work" further define their scope through criteria which are set out in paragraphs 52 to 62 below.

49. Work of equal value. Since 1975, the number of legal enactments calling specifically for observance of the principle of equal remuneration for work of equal value has increased considerably. Such provisions exist now in general labour legislation or special laws on equal treatment, inter alia, in the following countries: Argentina, (Endnote 58) Brazil, (Endnote 59) Canada, (Endnote 60) Equatorial Guinea, (Endnote 61) France, (Endnote 62) Federal Republic of Germany, (Endnote 63) Greece, (Endnote 64) Haiti, (Endnote 65) Iceland, (Endnote 66) Indonesia, (Endnote 67) Ireland, (Endnote 68) Italy, (Endnote 69) Luxembourg, (Endnote 70) Malta, (Endnote 71) Netherlands, (Endnote 72) Norway, (Endnote 73) Philippines, (Endnote 74) Portugal, (Endnote 75) Somalia, (Endnote 76) Sweden, (Endnote 77) United Kingdom. (Endnote 78) In Denmark and Finland, draft equal treatment legislation is to embody the principle of equal pay for work of equal value. While many of the equal treatment laws apply to both the private and public sectors, the principle of the Convention has also been written into the public service legislation of a number of States.

50. In many of these laws, the concept of equal value is further elucidated through definitions referring to objective job evaluation or incorporating elements of it. These will be considered below, following a more general examination of criteria referred to in national legislation, in addition to the basic formulas already reviewed, for the payment of equal remuneration.

(b) Further criteria

(i) Hours of work and seniority

51. Among the additional elements mentioned in a number of laws as criteria for comparing remuneration are factors such as hours of work or seniority, which relate to the time spent at or in the job or within the service or enterprise; such criteria, which are equally applicable to men and women and do not call for an element of judgement or appraisal, may be considered as neutral for the purposes of wage discrimination based on sex. (Endnote 79)

(ii) From performance appraisal to job evaluation

52. Criteria calling for a value judgement may refer to the nature of the job or to the individual input by the person who performs it. Some terms may be used in either context: e.g., reference may be made to the skill or effort required by the job (in comparison to a different job), or to the skill and effort with which the work is being done (as compared with the skill and effort invested by another worker). The term "work" itself may refer either to a job or task to be performed or to the worker's individual input or output. Where the criteria of appraisal provided are limited to an assessment of the individual performance, they permit to rationalise the differentiation of wages for the same job, but offer no basis for the comparative evaluation of different jobs.

53. Workers' skill and output. Some of the labour laws providing for equal remuneration for "the same work" require that not only the nature of the work, (Endnote 80) or the circumstances of employment, (Endnote 81) but also the workers' skill (Endnote 82) or qualifications and aptitudes, (Endnote 83) or the quality of the work, (Endnote 84) and the workers' output, (Endnote 85) or the volume of the work (Endnote 86) are the same. Similarly, the wording of section 91 of the French Overseas Labour Code provided for payment of the same wage to all workers, irrespective of their origin, sex, age and status, "in equal conditions as regards work, skill and output". This provision has been included in the labour codes adopted in a fair number of French-speaking African countries. (Endnote 87)

54. While performance appraisal criteria such as skill and output and their equivalents are not discriminatory in themselves as a basis for wage differentiation, they must be applied bona fide. The Committee has drawn attention in its 1975 general survey (Endnote 88) to historical experience that insistence on "equal conditions as regards work, skill and output" can be taken as a pretext for paying women lower wages than men. Moreover, the Committee pointed out (Endnote 89) that a criterion such as output, while legitimate in itself, becomes unacceptable if it results in only women workers being required to show proof of their output or in different wage groups being established on the basis of the average output of each sex within a given context.

55. Efficiency. Under the Labour Act of Turkey, (Endnote 90) no distinction shall be made in an undertaking on grounds of sex between the wages paid to male and female workers performing jobs of the same nature and working with equal efficiency. Similarly, a number of Central and South American labour codes (Endnote 91) provide for equal pay for "equal work" performed with "equal efficiency" in the same category (Endnote 92) or type (Endnote 93) work, or in equal posts, (Endnote 94) positions (Endnote 95) or jobs, (Endnote 96) or equivalent posts. (Endnote 97) The criterion of efficiency combines the performance appraisal criteria of skill and output, considered in the preceding paragraphs.

56. Among the countries whose labour codes guarantee equal remuneration for "work of equal value", (Endnote 98) Argentina permits differences in treatment corresponding to factors "such as greater efficiency, diligence or application on the worker's part". (Endnote 99) In Brazil, section 5 of the Consolidation of Labour Laws, providing generally for the payment of equal remuneration for work of equal value without distinction based on sex, coexists with section 461 of the same text which provides that "where the duties performed are identical", equal wages shall be paid, irrespective of sex, for all work of equal value performed for the same employer in the same locality. The latter provision defines work of equal value as that performed with equal productivity, and the same technical perfection, by persons whose seniority difference is not above two years. (Endnote 100) With the exception of the reference to "identical functions", all of these various criteria relate to individual performance or seniority. Where the principle of equal pay for work of equal value is to extend to different functions, (Endnote 101) its implementation cannot be limited to performance appraisal but rests upon the application of other criteria as well.

57. Quantity and quality of work. Several countries in which most wage earners are employed by public authorities or organisations make specific provision in their labour codes for the payment of equal wages for the same work, (Endnote 102) or for equal work (Endnote 103) irrespective of sex, or make it illegal to pay reduced rates on account of sex, (Endnote 104) or more generally guarantee women the same status as men in matters of employment. (Endnote 105) The same labour codes or their implementing decrees provide for standardised remuneration systems and wage rates as well as grading scales and occupational descriptions and categories or job classification criteria to be established by national government authorities with the participation of national trade union organisations or those of the branches concerned; often, these bodies are also to issue output or labour-input standards or other rules governing the appraisal of workers' performances and aptitudes. A number of the same labour codes indicate in some detail the criteria to be used in evaluating, describing and grading the various jobs in existence as well as criteria for the appraisal of workers' aptitudes and performances. Two criteria to be found in practically all (Endnote 106) of the labour codes concerned, often linked to (Endnote 107) the principle of equal remuneration or mentioned in the same context, (Endnote 108) are quantity and quality of the work.

58. The criteria of quantity and quality of work appear objective, in that they relate to an object rather than a person. However, only work of the same kind can be measured comparatively by the standards of quantity and quality, which are in fact corollaries of the performance criteria of output and skill, already considered above. (Endnote 109) Other criteria occasionally mentioned in connection with the principle of equal pay for equal work are merit and ability, (Endnote 110) concerned with the evaluation of workers rather than work. Another is the social importance of the work (Endnote 111) which, unless identified with the ranking of the job in the existing wage hierarchy, appears a rather open-ended criterion. In so far as more general constitutional and legal provisions guaranteeing women equal access to all jobs (subject to protective provisions) have not eliminated the existence in practice of categories of jobs predominantly held by women, an unbiased evaluation of such jobs in terms of their social importance presupposes full recognition of women's equal status not only at the workplace but also in society, as called for by the same general constitutional and legal principles.

59. In the light of the criteria of quantity and quality, the scope of provisions calling specifically for equal pay for equal work appears limited to a comparison of the performance of substantially identical jobs. (Endnote 112) A number of the labour codes considered in paragraph 57 also contain other, rather detailed, criteria for the comparative evaluation of different jobs within the national remuneration system, which are, however, neither drawn up (Endnote 113) nor referred to (Endnote 114) for the purposes of the principle of equal remuneration. As the Committee pointed out in paragraph 78 of its 1975 general survey in connection with classification systems drawn up not for the purpose of applying the principle of equal pay but to establish the grading system which is indispensable in any public administration, such systems, although obviously "depersonalised", are not immune against the emergence of discrimination. However, in the countries considered, as in many others too, even those standards and criteria of the general wage system which are not interlinked with the principle of equal pay for equal work have to be applied and developed in the light of the general principle of non-discrimination on the grounds of sex, written into the constitutions and most of the labour codes. Even in the absence of more specific equal treatment legislation, job evaluation standards have for example been improved in Hungary in 1984 through the inclusion of new criteria which led to the upgrading of jobs in numerous spheres of work where women are employed for the most part. (Endnote 115)

60. Inherent job requirements. Skill (or knowledge evidenced by a title or diploma or by practice in the job, and abilities following from experience acquired), effort (physical or mental effort, or physical, mental or nervous strain connected with performance of the work) and responsibility (or decision) required to perform the work (having regard to the nature, scope and complexity of the duties inherent in each job, the extent to which the employer relies on the employee to perform the work and the accountability of the employee to the employer for resources and for the work of other employees), and the conditions under which the work is to be performed (including factors such as noise, heat, cold, isolation, physical danger, health hazards and any other conditions produced by the work environment) are the criteria most often referred to in equal remuneration legislation and guide-lines in order to compare work to be performed by men and by women (rather than the manner in which it is performed). These criteria are used in a varying context and perspective: in addition to a requirement that the nature of the job or functions be substantially similar in kind, quality and amount, as in Jamaica and Swaziland; (Endnote 116) or to define what is work of the same or a similar nature, as in India; (Endnote 117) or, finally, as factors to establish an equivalence between jobs of a different nature. In the application of the principle of equal pay for work of equal value, criteria for an evaluation of the requirements inherent in each job provide a common denominator for comparing jobs of a different nature, so that the restriction to same, similar or substantially similar work, made in a number of laws, does not appear as intrinsically linked to the approach chosen, and may be progressively discarded.

61. Concepts are still being debated in the United States, where the Equal Pay Act of 1963 (Endnote 118) provides for equal pay for equal work on jobs the performance of which requires equal skill, efforts and responsibility, and which are performed under similar working conditions. While this provision is generally held to be applicable only to jobs "substantially equal" in nature, (Endnote 119) 16 States (Endnote 120) have adopted laws that go beyond equal pay for equal work and call for equal pay for work of comparable worth. At the federal level, approaches to widening the scope of comparison have been made on the basis of Title VII of the Civil Rights Act of 1964, which will be considered in paragraphs 68 and 120 below. The Equal Pay Act leaves room for wage differentiation on the basis of, inter alia, a merit system or a system which measures earnings by quantity or quality of production; such performance-based systems are presented as exceptions to the general principle.

62. In Algeria, performance-related factors coexist with job-evaluation criteria under two separate equal pay principles in the Workers' Conditions of Employment Act: (Endnote 121) Under section 7(2) of the Act, workers shall be entitled to the same remuneration and advantages "for the same work if they have equal skill and output". Sections 104 and 106 provide that for the purposes, inter alia, of applying the principle "equal work, equal pay", the various jobs shall be classified in a coherent system, "based, to the exclusion of all other criteria, on those specific to the nature of the duties inherent in each job, their scope and complexity, the degree of skill, responsibility and physical, mental or nervous strain connected with their performance, the special demands of a purely technical nature that they imply and the degree of danger connected with the job". (Endnote 122) Here, the term "equal work" refers, beyond same or similar jobs, to jobs given the same value within an analytical system of classification which, in the terms of section 104 of the Act, "shall enable all jobs to be related to each other on the basis of their specific characteristics and the related duties". This is the concept of equal remuneration for work of equal value, formally adopted in a number of laws whose criteria will be considered in the following paragraphs.

(c) Defining work of equal value

63. Among the laws providing specifically for equal remuneration for work of equal value, (Endnote 123) some merely proclaim the principle, leaving its interpretation to implementing bodies; (Endnote 124) a few mention performance criteria. (Endnote 125) A number of laws which refer to job evaluation criteria or systems to define work of equal value are reviewed in the following paragraphs, before recalling the inter-relationship in many laws between the concept of work of equal value and the principle of non-discrimination.

64. Reference to job evaluation criteria and systems. Evaluation criteria based on an analysis of the inherent job requirements, such as those set out in paragraphs 60 et seq. above, are enumerated by equal pay legislation in Canada, (Endnote 126) France, (Endnote 127) and Ireland (Endnote 128) for determining an equivalence between jobs which are neither identical nor similar in nature. In the United Kingdom, demands made on a worker under various headings such as effort, skill, decision are to be evaluated in a study covering the jobs of all or any of the employees in an undertaking or group of undertakings. (Endnote 129) Without listing specific criteria, the definition of "work of equal value" in Portugal refers to duties which, "although different in nature, are considered to be equivalent after the application of objective job assessment criteria". (Endnote 130) Similarly, in Sweden, reference is made to "work which, in accordance with a collective agreement or the practice observed within the sphere of activity concerned, is to be regarded as equal or of equal value in the light of an agreed assessment of the job". (Endnote 131) In the Netherlands, the law provides that, for the purposes of workers' entitlement to equal wages for work of equal value, "work shall be assessed in accordance with a reliable system of job evaluation; to this end recourse shall be had as far as possible to the system customary in the undertaking where the worker concerned is employed. In the absence of such a system the work shall be fairly assessed in the light of the available information." (Endnote 132)

65. Review of job evaluation systems. A number of laws on equal remuneration for work of equal value provide that not only the various components of remuneration but also all types of, and criteria for, occupational classification and upgrading schemes and all other bases for calculating remuneration, including in particular job evaluation methods, shall be the same for workers of either sex, (Endnote 133) or that occupational classification systems applied for the purpose of fixing remuneration shall adopt common criteria for men and women (Endnote 134) and shall be applied without discrimination based on sex. (Endnote 135) In the United Kingdom, a woman is to be regarded as employed on work rated as equivalent with that of any men if her job and their job "would have been given an equal value but for the evaluation being made on a system setting different values for men and women on the same demand under any heading. (Endnote 136) While all these provisions call for formal equality of men and women under classification systems, criteria and ratings, section 2 A(3) of the United Kingdom Equal Pay Act 1970 (inserted by section 3 of the Equal Pay (Amendment) Regulations 1983) moreover provides that "an evaluation contained in a study such as is mentioned in section 1(5) above" (Endnote 137) "is made on a system which discriminates on grounds of sex where a difference, or coincidence, between values set by that system on different demands under the same or different heading is not justifiable irrespective of the sex of the person on whom those demands are made". A further step towards the elimination of discrimination is made in legislation which provides substantive criteria for the identification of underlying sex biases in the choice of requirements or conditions, considered in paragraph 70 below.

II. Defining discrimination

66. The identification in Article 1(b) of the Convention of "equal remuneration for men and women workers for work of equal value" with "rates of remuneration established without discrimination based on sex" (Endnote 138) is occasionally repeated in definitions under national legislation. (Endnote 139) More generally, the prohibition of discrimination based on sex is usually made explicit also in legislation dealing with equal remuneration in terms of job comparison. Often, the two complementary aspects work of equal value and non-discrimination on the basis of sex -- are referred to in mutual support; while the present survey has so far considered national laws from the viewpoint of equal remuneration for work of equal value, a number of these laws indeed place that principle within the wider context of non-discrimination on the grounds of sex, particularly in employment. The following paragraphs will focus on those laws which, without mentioning the principle of equal pay for work of equal value, develop in lesser or greater detail its counterpart, the concept of non-discrimination between men and women in remuneration or in employment in general.

67. Evidence and burden of proof. In order to give statutory effect to the principle of equal remuneration, a number of countries rely on legal provisions which prohibit unequal treatment of the workers of the same enterprise, (Endnote 140) or pay discrimination between men and women by the employer (Endnote 141) or more generally, discrimination in the fixing of remuneration, (Endnote 142) or which call for work to be made available to every citizen subject to the same conditions and equal opportunities for all without discrimination on grounds of sex. (Endnote 143) In some cases, the law provides further indications to define discrimination. In Austria, "the expression "discrimination" means any differentiation made to the detriment of the person concerned without material justification" (section 2 of the Equality of Treatment Act). In Zimbabwe, a person shall be deemed to have discriminated if his act or omission causes or is likely to cause persons of one sex to be treated less favourably or more favourably than persons of the other sex, unless it is shown that such act or omission was not attributable wholly or mainly to the sex of the persons concerned (section 5(6) of the Labour Relations Act, No. 16 of 1985). Such definitions turn to a large extent upon the burden of proof, whose key role has been given similar attention in a number of equal pay and equal treatment laws. (Endnote 144)

68. Job evaluation as evidence. In the United States, claims of sex-based wage discrimination can be brought either under the Equal Pay Act (considered in paragraph 61 above) or under Title VII of the Civil Rights Act of 1964 (42 United States Code Section 2000e -- 2(a)). Title VII of the Civil Rights Act makes it an unlawful employment practice for an employer (1) inter alia, "to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's" sex; or (2) "to limit, segregate or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee", inter alia, because of such individual's sex. Although a reference to wage differentiation authorised by the Equal Pay Act was incorporated into Title VII of the Civil Rights Act through the Bennett Amendment, court practice entertains claims under Title VII going beyond a comparison of "substantially equal" jobs in the same establishment, without, however, theoretically endorsing the "comparable worth" or "work of equal value" concept, which allows for the comparison of different jobs on the basis of common evaluation criteria. Instead, the courts tend to rely on a finding of intentional discrimination, inter alia, where a job evaluation study has been delayed or disregarded by the employer. (Endnote 145) None the less, a number of state (Endnote 146) and local governments have adopted the "comparable worth" approach, also supported by AFL-CIO resolutions, in order to determine whether entire classes of jobs traditionally held by women have been undervalued and underpaid.

69. Hypothetical comparison. Under the New Zealand Equal Pay Act, 1972, (Endnote 147) " "equal pay" means a rate of remuneration for work in which rate there is no element of differentiation between male employees and female employees based on the sex of the employees" (section 2). Under section 3(1), criteria to be applied in determining whether there exists such element of differentiation distinguish between work which is not exclusively or predominantly performed by female employees and work which is. For determining the remuneration of "work which is exclusively or predominantly performed by female employees", section 3(1)(b) refers to "the rate of remuneration that would be paid to male employees with the same, or substantially similar skills, responsibility, and service performing the work under the same, or substantially similar, conditions and with the same, or substantially similar, degrees of effort".

70. Sex discrimination. Reflecting on the various disguises that discrimination based on sex may take, and taking a closer look at job requirements laid down in neutral language, section 5 of the Sex Discrimination Act 1984 of Australia gives the following two definitions of sex discrimination: "(1) For the purposes of this Act, a person (in this sub-section referred to as the "discriminator") discriminates against another person (in this sub-section referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if, by reason of -- (a) the sex of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person, -- the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex. (2) For the purposes of this Act, a person (in this sub-section referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the grounds of the sex of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition -- (a) with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply; (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply." It will be seen that the foregoing definitions seek to cover sex discrimination under any guise. The quantitative criterion of subsection (2)(a) should facilitate the review, inter alia, of job descriptions and classification systems in the light also of subsection (2)(b), to ensure equal treatment of women and men in employment and remuneration. Similarly, the Government of Finland indicates in its article 22 report for 1983-85 on the Convention that section 8 of a bill for an Equality Act submitted in 1985 to Parliament provides that "the comparisons of remuneration would not apply only to those performing the same work but also to those performing work of the same value. This comparison should be based mainly on the practice or the norms agreed on, which are followed in the different fields, e.g., in the classification of jobs. If the classification systems based on agreements de facto affect the employees representing the other sex in a discriminating manner, the labour market parties are under the obligation to change and develop them so as to make them correspond to a larger extent to the objectives of equality". (Endnote 148)

III. Reach of comparison

71. In dealing with a range of formulas and criteria for equal treatment of men and women in the field of remuneration, paragraphs 45 et seq. above show a progression from concepts which connect equal remuneration with same or similar work to those which provide for the comparison of different jobs in terms of equal value. A similar, albeit not always concomitant, evolution leads from provisions calling for observance of the principle of equal remuneration within the limits of the same workplace or establishment to those aspiring to its implementation on a wider basis.

72. Same establishment, enterprise or employer. In the majority of countries, legal provisions guaranteeing equal remuneration do not mention the employer or place of work. In a number of cases, however, the provisions of national legislation referred to in paragraphs 45 to 70 above appear to limit the purview of the principle of remuneration without discrimination based on sex to ensuring equality of treatment between persons employed in the same enterprise, (Endnote 149) or in the same enterprise or establishment, (Endnote 150) or by the same employer, (Endnote 151) or by the same employer in the same locality, (Endnote 152) place of work, (Endnote 153) establishment, (Endnote 154) service and undertaking (Endnote 155) or establishment or employment. (Endnote 156) Referring to such cases in paragraph 38 of its 1975 general survey, the Committee observed that it seems difficult to narrow the framework for the application of the principle of the Convention without narrowing its scope at the same time. Where women workers are more heavily concentrated in certain sectors of activity, there is a risk that the possibilities for comparison may be insufficient at the level of the establishment. As the Committee pointed out in paragraph 22 above, 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.

73. Functional limitations. In some countries, provisions calling for observance of the principle of equal remuneration by the employer seek to take account of the levels at which decisions affecting wages may be taken, so that there is a shift from purely geographical or organisational towards more functional limitations. Thus, in the United Kingdom, women and men employed in different establishments (throughout the country) of a group of companies come within the reach of comparison for the purposes of equal pay if common terms and conditions of employment are observed there either generally or for those concerned. (Endnote 157) It appears that under this legislation, claims can be brought across the existing boundaries of bargaining units, grading systems or job evaluation schemes. The existence of separate pay systems for manual workers and clerical staff, for example, will not stop a woman clerical worker claiming that she is employed on work of equal value with that of a male manual worker. (Endnote 158) In employment under the federal jurisdiction in Canada, "it is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value" (section 11(1) of the Canadian Human Rights Act of 1977). At present, "establishment" is defined in terms of geographical location or unit of organisation. (Endnote 159) However, under section 11(2.1) of the Act, "separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be a single establishment". Moreover, in March 1985, the Human Rights Commission published proposals (Endnote 160) for amending the Equal Wage Guide-lines, (Endnote 161) which are binding both on the Commission and on the human rights tribunals provided for under the Act to deal with complaints. The draft guide-lines -- which have been submitted to public and private employers, employee organisations, women's groups and human rights agencies for comment and advice -- propose that "establishment" be defined in functional rather than geographic terms. Employees of an employer would thus be considered to be in the same establishment when they are subject to a common set of personnel and compensation policies, regulations and procedures; and when these policies, regulations and procedures are developed and controlled centrally even though their administration may be delegated to smaller units of organisation. (Endnote 162) In Finland, a bill for an Equality Act submitted to Parliament in 1985 provides in section 8 that comparison between employees should take place between the employees of the same employer. As a rule the comparison should take place within the same workplace. If the employer has several workplaces, these could also be compared with each other, taking into consideration, however, that in practice differences between localities also appear as differences in the terms of employment.

74. Comparisons between enterprises. A distinction must be made between laws which, in referring to work within the same establishment, enterprise or employment, limit the reach of comparison for the purpose of establishing the comparable worth of a job, and those which in more general terms call upon the employer to observe the principle of equal pay or non-discrimination on the basis of sex. (Endnote 163) In the latter case, the obligation to pay remuneration in conformity with the principle rests on the employer, but the reach of comparison for the purpose of determining his observance of the principle may extend beyond the limits of his sphere of control. In some countries, this is specifically provided for in legislation or case law. Thus, in the United States, court practice under Title VII of the Civil Rights Act of 1964, already referred to in paragraph 68 above, has accepted a survey of wage rates paid outside the enterprise as evidence in support of a finding of international discrimination. (Endnote 164) In the Netherlands, the Equal Wages for Women and Men Act, (Endnote 165) already referred to in paragraph 64 above, provides in section 3(2) that "where no work of equal or approximately equal value is done by a worker of the other sex in the undertaking where the worker concerned is employed, the basis" (of comparison) "shall be the wage that a worker of the other sex normally receives, in an undertaking of as nearly as possible the same kind in the same sector, for work of equal value or, in the absence of such work, for work of approximately equal value". In such cases, "account shall be taken of general differences in the wage structures of the undertakings concerned" (section 5(3) of the Act). Finally, in Sweden, section 4(1) of the Act respecting equality between women and men at work, (Endnote 166) provides that "discrimination on the basis of sex shall also be deemed to occur where an employer observes less favourable conditions of employment for a worker than those that he observes for a worker of the opposite sex, if such workers perform work which, in accordance with a collective agreement or the practice observed within the sphere of activity concerned, is to be regarded as equal or of equal value in the light of an agreed assessment of the job and the employer cannot show that the different conditions of employment are related to differences in the workers' material qualfications for the work or that they are not in any event related to the workers' sex". Here the reference to "an agreed assessment of the job", already considered in paragraph 64 above, is placed within the wider context of "a collective agreement or the practice observed within the sphere of activity concerned". Elsewhere, compliance with the principle of equal remuneration is called for under legislation dealing separately with the employer's obligations and with the provisions of collective agreements and other wage-fixing instruments of wider application, which, of course, also bind the individual employer. (Endnote 167)

75. Collective agreements and other wage-fixing instruments. Even where the law relies on the employer for ensuring equal remuneration within the limits of a workplace, establishment or enterprise (where the actual wages and fringe benefits paid will often depend to a certain extent on individual contracts and arrangements or company regulations and agreements), there may be additional legal provisions to ensure that collective agreements, wage orders, awards and other instruments fixing remuneration on a wider scale also comply with the principle of equal pay. Thus, in Ireland, sections 2 and 3(c) of the Anti-Discrimination (Pay) Act 1974 (Endnote 168) require employers to pay equal remuneration to women and men employed on work of equal value in the same place, but section 5 also provides that where collective agreements, employment regulation orders, registered employment agreements or orders made by the Agricultural Wages Board contain a provision in which differences in rates of remuneration are based on or related to the sex of employees, such a provision shall be null and void. (Endnote 169) In Argentina, an employer shall treat all his workers identically in identical situations under section 81 of the Consolidated text of the rules governing contracts of employment, (Endnote 170) while section 172(2) moreover provides that every collective agreement or wage scale shall guarantee that the principle of equal pay for work of equal value is fully observed. In France and Luxembourg, not only is every employer bound to ensure, in respect of work of equal value, equal remuneration for men and women, but also any provision contained, inter alia, in a contract of employment, a collective agreement, a wage agreement, wage regulations or wage scales decided by an employer or group of employers, which involves a lower rate of remuneration for employees of either sex in relation to the other for work of equal value shall be automatically null and void, and the higher of remuneration shall apply. (Endnote 171) Similarly, in Spain, the requirement in section 28 of the Workers' Charter (Endnote 172) that an employer shall pay the same wage for equal work, without any discrimination whatsoever on grounds of sex, covers but a small segment of section 17, under which any regulations, stipulations of collective agreements, individual contracts or unilateral decisions by an employer discriminating in favour of or against a worker by reason of his sex, inter alia, in matters of remuneration, shall be null and void.

76. National wage system. While most laws prohibiting discrimination in remuneration on grounds of sex do not indicate a limitation on the comparison between jobs performed in different places or enterprises or for different employers, such limitation may even be specifically excluded where there is a single nation-wide wage system. Reference was made in paragraph 62 above to legal provisions in Algeria under which a single nation-wide method of classification shall permit all jobs to be related to each other for the purposes, inter alia, of applying the principle "equal work, equal pay". Similarly, the reach of comparison does not appear to be limited under nation-wide wage systems provided for in most public service laws as well as in the labour and wage legislation of several countries in which most wage earners are employed by public authorities or organisations. (Endnote 173)

IV. Protective provisions

77. Protection of maternity and health. Maternity protection and other special measures of protection, such as the limitation of women's access to certain jobs on medical grounds, have been among the first concerns of national and international standard setting in the social field, and are taken into account in paragraph 6(d) of the Equal Remuneration Recommendation, 1951, as well as Article 5 of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). While some of these provisions, such as those limiting the night work of women, have been or are being reviewed in certain countries in the light of the principle of equality of opportunity and treatment in employment, others, including those protecting maternity, remain universally accepted. In a number of countries, specific provision has therefore been made to leave no doubt that "the adoption of measures for the labour protection of women shall be deemed to be a matter of public interest and shall in no case justify a reduction of wages" (Brazil) (Endnote 174) or that "no agreement on a lower rate of remuneration shall be justified by the fact that special provisions affording protection on account of the worker's sex apply" (Federal Republic of Germany). (Endnote 175) Similarly, in India and the United Kingdom, in so far as -- (a) the terms and conditions of a woman's employment, are, in any respect, affected by compliance with the laws regulating the employment of women, or (b) any special treatment is afforded to women in connection with pregnancy or childbirth -- then to that extent the requirement of equal treatment for men and women shall not apply, (Endnote 176) and in New Zealand, "in determining whether there exists an element of differentiation, based on the sex of the employees, in the rates of remuneration for male employees and female employees for any work or class of work, no account shall be taken of any provision in any Act or order in council which limits the work female employees may perform". (Endnote 177) In the USSR, it is specified that it is unlawful to reduce a woman's remuneration on account of her pregnancy or the fact that she is breast-feeding an infant; (Endnote 178) comparable provisions exist elsewhere in collective agreements. (Endnote 179)

78. Prohibition of downward equalisation. In Canada, India, the United States and Swaziland, laws providing for equal remuneration specify that an employer shall not reduce wages (or the wage rate of any worker) in order to eliminate a discriminatory practice (or to comply with the law). (Endnote 180) In other countries (e.g. France, Luxembourg), the law provides that in cases of unequal wages for work of equal value, the higher rate shall apply automatically. (Endnote 181)

C. Defining remuneration

79. Many labour codes and a number of equal remuneration and equal treatment laws provide for the same or equal wages or remuneration, or equal treatment in the field of remuneration for men and women, without defining the term "wage" or "remuneration". (Endnote 182) A few limit its scope to "basic remuneration" (Endnote 183) or "initial wage"; (Endnote 184) a fair number contain a general definition which is often supplemented with a detailed list of benefits specifically included in, or excluded from, the scope of remuneration in general or for the purposes of equal pay. The inclusion or exclusion of particular benefits may also be specified where "wages" or "remuneration" are not otherwise defined. In the case of certain fringe benefits such as housing and family allowances or pension rights, which sometimes match the basic wage in importance and whose equal (or unequal) attribution is intimately linked to the general status of women and men in family and society, important developments have taken place in a number of countries in the public sector, to be reviewed in Chapter V, section 1.

I. General principles

80. The formula of the Convention. The comprehensive definition of "remuneration" in Article 1(a) of the Convention (Endnote 185) is based on parameters covering (i) the "ordinary, basic or minimum wage" as well as "any additional emoluments whatsoever"; (ii) payments in cash as well as in kind; (iii) payments made directly as well as indirectly by the employer to the worker -- provided in all cases that the payments are "arising out of the worker's employment". This formula is closely followed in Article 119 of the Treaty establishing the European Economic Community (Endnote 186) and in equal remuneration or equal treatment laws in France, (Endnote 187) Greece, (Endnote 188) Jamaica (Endnote 189) and Luxembourg, (Endnote 190) and to large extent in India. (Endnote 191)

81. Cash wage. Where "in general terms, wages are the amount of money to be paid in cash by an employer or third party to a person in return for work performed", as in Turkey, (Endnote 192) the limitation to cash payments -- unlike a reference to remuneration capable of being evaluated in terms of money -- falls short of the definition of the Convention, which includes payments in kind. (Indirect payments may to a certain extent be covered by the reference to a "third party", although payments "in return for work performed" would not otherwise necessarily include all payments "arising out of the worker's employment" -- see below.)

82. Direct wage. Under the labour codes of Cameroon, (Endnote 193) Haiti, (Endnote 194) Paraguay, (Endnote 195) and the Philippines, (Endnote 196) the term "wage" means any remuneration or earnings, however designated (or calculated), capable of being expressed (or evaluated) in terms of money, which is payable by virtue of a (written or unwritten) contract of employment by an employer to a worker for work done or to be done or for services rendered or to be rendered. Such definition lacks both a reference to indirect wage elements (whether by specific reference or otherwise), and sufficient width to cover any payments "arising out of the worker's employment", since wages are limited to payments by the employer for work done or to be done (or for services rendered or to be rendered). (Endnote 197) Omission of "indirect wages" may to a certain extent be compensated by reference to any payments "arising out of the worker's employment" (e.g. where remuneration means any benefit to which the worker is entitled "whether or not such payment is made in return for services". (Endnote 198) Similarly, an explicit link to work performed will not diminish the scope of remuneration where "any advantages received directly or indirectly from the employer" (Endnote 199) are included. Where, however, neither indirect payments nor payments "arising out of the employment" otherwise than in return for work or services are referred to in the definition of remuneration, its application may, as the Committee pointed out in paragraph 56 of its 1975 general survey, be based on the concept of a direct wage, more restrictive than the formula of the Convention, which includes remuneration payable indirectly by the employer and arising out of the employment.

83. Basis for payment. A number of laws, including those quoted in paragraph 82, refer to remuneration payable for work or services "by virtue of a contract of employment"; (Endnote 200) in several cases, the law explicitly mentions oral or unwritten contracts. In addition, reference is sometimes made to laws, regulations or collective agreements fixing the amount of remuneration. In Iraq and the Libyan Arab Jamahiriya, wages are generally defined in terms of compensation for work performed, but bonuses, gratuities and the like are included only if such payment is provided for in individual or collective contracts of employment, or in rules of employment, or "is sanctioned by practice or custom" (Endnote 201) or "is traditionally or customarily paid to workers so that they have come to consider it as part of their payment and not as a gift". (Endnote 202) Similarly, in Colombia, wages include "habitual allowances" but not "sums which the employer pays occasionally to the employee without being in any way obliged to do so, such as occasional bonuses". (Endnote 203) Where the legal basis for the payment is indicated in the definition of remuneration, it should be as comprehensive as possible, since the Convention refers to "any additional emoluments whatsoever payable directly or indirectly" by the employer to the worker and "arising out of the worker's employment", without limiting in any way its purview by reference to the legal basis for the payment. (Endnote 204)

84. Context of the definition. Under the Labour Code of Czechoslovakia, the expression "wages" includes basic wages, bonuses, allowances and other rewards paid for the performance of work and a share in the economic results of the organisation. (Endnote 205) In Norway, the Act respecting equality between the sexes defines "wages" as "the normal remuneration and all other supplements or advantages in cash or other benefits granted by the employer". (Endnote 206) While either definition is silent on the subject of indirect remuneration, this comes within the more general purview of the entitlement to equal status guaranteed under both Acts. (Endnote 207) Similarly, in the United States, the scope of the term "wages" in the Equal Pay Act of 1963 has been the subject of guide-lines (covering, inter alia, employer contributions to sickness, accident and life insurance and pensions schemes), but, more generally, any element of remuneration under the Convention is within the scope of Title VII of the Civil Rights Act, which applies to "compensation, terms, conditions, or privileges of employment" (see paragraph 68 above). In Equatorial Guinea, section 52 of the Labour Code of 1984 excludes, inter alia, family, cost-of-living and travel allowances from wages, but section 53 guarantees not only equal remuneration for work of equal value but also equality of opportunity and treatment in employment and occupation. In Spain, compensation for transfer, suspension or dismissal shall, inter alia, not be deemed wages under section 26(2) of the Labour Code, (Endnote 208) but any discriminatory provisions or decisions in matters of employment or conditions thereof shall be null and void under section 17.

II. Specific elements

85. Specific elements of remuneration in the sense of the Convention may be explicitly included in, or (in the absence of wider-reaching guarantees of the kind considered in paragraph 84) excluded from the scope of legislation either in connection with a general definition of remuneration, or under separate legal provisions. Marriage, family and housing allowances, and employer contributions to insurance and pension schemes are two fields in which changing perceptions of the general status of women in society are reflected in a great diversity of legal developments affecting the concept of remuneration, to be considered in the following paragraphs, (Endnote 209) before a brief review of other "additional emoluments" and the composition of remuneration under comprehensive national wage systems.

86. Marriage and family allowances. In Greece, "marriage allowances and child allowances granted for the first time or under the new regulations shall henceforth be paid in full to the spouse or the parent who works, independent of his or her sex ... Where both spouses or both parents are working, the marriage allowances and child allowances payable from the commencement of this Act shall be paid to the spouse or parent indicated in a joint statement presented to the employer of their choice. If the spouses or parents concerned are unable to reach an agreement or to present a joint statement on this matter, each of the employers shall pay the spouse or parent employed in his undertaking, half of the amount of the marriage allowance or child allowance provided for by law. (Endnote 210) In Italy, family allowances and family supplements may be paid to a female worker or to a male worker on the same conditions and within the same limits. Where application is made by both the parents, such family allowances and family supplements shall be paid to the parent with whom the child is living. (Endnote 211) In the Economic Reform Act of Belgium, (Endnote 212) family allowances are mentioned in connection with social security schemes exempted from the scope of equal treatment provisions in that Act. In India, any provision made in connection with marriage is exempted from the requirement of equal treatment for men and women under the Equal Remuneration Act 1976. (Endnote 213) Where equal wages for men and women are provided for in labour codes, family allowances may be mentioned in the general definition of wages as part thereof. Two otherwise similar definitions of "wage" may refer inter alia to "cost of living and family allowances" (Endnote 214) or, perhaps more explicitly, to "allowances for cost of living and family responsibilities". (Endnote 215) The latter formula points to the fact that family responsibilities are governed by other laws, which may or may not attribute family responsibilities in the first place to the male parent, considered as the "head offamily" or "head of household". Here, the effect of equal remuneration provisions depends to some extent on the equal status of men and women under more general legislation.

87. Housing. In Zimbabwe, no employer shall discriminate against any employee on grounds of sex in relation to, inter alia, the allocation of accommodation, (Endnote 216) and in Japan, with regard to the loaning of funds for building or purchasing a house. (Endnote 217) In a number of equal treatment laws and labour codes guaranteeing equal wages or remuneration for men and women, the definition of wages or remuneration specifically includes reasonable value for board, rent, housing, lodging (Endnote 218) or the provision of accommodation, lodging, housing or a dwelling by the employer. (Endnote 219) The labour codes of Colombia and Costa Rica explicitly refer in this connection to a dwelling or lodging provided to the employee "or his family", but are silent as regards the possibility for a working woman to obtain a family lodging on the same terms as a working man, in particular where the respective spouses also work, but for another employer. (Endnote 220)

88. Insurance and pension schemes financed by employers. In paragraph 17 above, it was recalled 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. For the purposes of equal remuneration, in Canada (Endnote 221) "wages" include "dismissal wages" and "employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans"; in Iceland (Endnote 222) "employment benefits" to be enjoyed equally by women and men include "the right to pensions, paid holidays and health insurance as well as any other employment rights based on labour contracts". In Norway, the Act respecting equality between the sexes (Endnote 223) applies "to all spheres, with the exception of the internal affairs of religious communities", and by Royal Decree of 10 February 1984, section 5, paragraph 4, of the Regulations concerning private pension schemes was amended to ensure that "pension schemes offering survivors' pensions must grant widows' and widowers' pensions under equal conditions". In Australia, terms and conditions appertaining to a superannuation or provident fund or scheme are provisionally exempted from the scope of the Sex Discrimination Act 1984; (Endnote 224) in India and the United Kingdom, terms relating to retirement or death and any provisions made in connection therewith. (Endnote 225) In Belgium, supplementary non-statutory social security schemes covering inter alia retirement and survivors' pensions are exempted together with statutory schemes from the application of the equal treatment provisions in the Economic Reform Act, (Endnote 226) while in Italy, Act No. 903 of 1977 respecting equality of treatment as between men and women in questions of employment (Endnote 227) calls for equal treatment regarding survivors' benefits both under the general compulsory disability, old-age and survivors' insurance scheme and under funds, schemes and institutions set up for workers by employers. For the purposes of the Convention, only schemes financed by the undertaking or industry concerned need to be covered (see paragraph 17 above). In zimbabwe, no employer shall discriminate against any employee on grounds of sex, inter alia, in relation to the determination or allocation of pensions. (Endnote 228) In Colombia, section 128 of the Labour Code, as amended, (Endnote 229) excludes the social benefits provided for in Titles VIII and IX of the Labour Code from the definition of wages but the terms and conditions under which, inter alia, leaving grants, pensions or collective life insurance are to be provided by employers under the respective provisions do not distinguish between men and women. (Endnote 230)

89. Other elements of remuneration. A number of labour codes and equal treatment laws, in particular in the Americas but also elsewhere, give a detailed enumeration of additional elements included in the definition of wages or remuneration. These may be extra pay, (Endnote 231) increments, cost-of-living supplements, payments for night work and shift allowances, (Endnote 232) payments for overtime or for work on a compulsory or weekly rest day or public holiday; (Endnote 233) bonuses or wage supplements (Endnote 234) which may inter alia be long-service or productivity bonuses, (Endnote 235) special bonuses, (Endnote 236) annual or Christmas bonuses, (Endnote 237) or bonuses for competence and loyalty (Endnote 238) or honesty, loyalty and efficiency; (Endnote 239) ex gratia payments; (Endnote 240) compensation for deficits; (Endnote 241) commissions, (Endnote 242) shares in profits, sales or payments received; (Endnote 243) fringe benefits whether in cash or in kind; (Endnote 244) paid holidays and vacation or leave allowances; (Endnote 245) food allowances or board; (Endnote 246) or land given by the employer to the employee for the sowing or harvesting of his own crops. (Endnote 247) Further elements, which some laws consider as part of wages but others specifically exclude in certain cases are considered in the following paragraphs.

90. Wage protection and equality. Certain benefits and supplies are sometimes excluded from a general definition of wages, apparently to prevent their being counted toward, or deducted from the amount of wages due to the workers; in this connection, the principle of equal treatment for men and women in respect of all direct and indirect payments by the employer which arise out of the workers' employment should not be neglected. Reference has already been made in paragraph 83 above to the exclusion of "occasional bonuses, allowances and gratifications" from wages under section 128 of the Labour Code of Colombia. The same exclusion from the general definition of wages exists in section 362 of the Labour Code of Honduras (Endnote 248) for occasional bonuses, allowances, and grants. Moreover, section 366(3) of the Labour Code of Honduras and section 166(3) of the Labour Code of Costa Rica provide that supplies furnished by the employer to the worker free of charge shall not be deemed to be wages in kind and shall not be deducted from the cash wage or taken into account in fixing the minimum wage. However, while the equal pay provision in section 143 of the Labour Code of Colombia refers to the general definition of wages, section 367 of the Labour Code of Honduras and, in similar terms, section 167 of the Labour Code of Costa Rica specify that, for the purposes of equal wages paid without discrimination, it is understood that such wages include not only all payments made on a day-to-day basis but also all grants, allowances, accommodation and other items received by a worker in consideration of his ordinary work. This should include supplies furnished free of charge, and might be held to cover also occasional bonuses, allowances and grants.

91. Working tools and travelling expenses. Section 128 of the Labour Code of Colombia excludes from the definition of wages, "payments in cash or in kind which are not for the personal use of the employee nor for the purpose of meeting his requirements or increasing his capital, but for the purpose of enabling him to carry out his work in a satisfactory manner, such as representation allowances, allowances for transport, working tools or other similar elements". A similar exclusion is made in section 362 of the Labour Code of Honduras. Section 131(1) of the Labour Code of Colombia provides that travelling expenses shall be considered as wages in so far as they are paid to cover the employee's food and hotel expenses; nevertheless, they shall not be considered as wages if they are solely for the purpose of enabling the employee to avail himself of means of transport or as representation allowances. In Brazil, board, lodging, clothing and other benefits in kind that the employer habitually supplies to the employee under the contract or in accordance with established custom shall be deemed for all legal purposes to be part of the wage under section 458 of the Consolidation of labour laws, but for the purposes of this section clothing, equipment and accessories supplied to the employee and used at the workplace for the performance of his work shall not be deemed to be wages. Under section 457(2) of the same code, travelling allowances and subsistence allowances not exceeding 50 per cent of the employee's wages shall not be deemed to be part of the wages. Under section 106 of the Labour Code of Argentina, travelling expenses shall be deemed to be remuneration, except for such part of the expenses as is actually paid out and substantiated by means of supporting documents, without prejudice to any special provisions in regulations and collective labour agreements. In Portugal, "transport allowances" are part of "remuneration" for the purposes of Legislative Decree No. 392/79 to guarantee equality of opportunity and treament for women and men in matters of work and employment. Where working tools, equipment and expenses are excluded from the definition of wages, the intention obviously is to protect workers' wages against unjustified deductions by the employer. In so far as such exclusion removes the supply of working tools and refunding of expenses from the scope of equal treatment provisions, equal remuneration for the purposes of the Convention is, however, no more guaranteed. (Endnote 249)

92. Tips. In Argentina, section 113 of the Labour Code provides that where a worker has an opportunity of obtaining advantages or income by reason of his work, his earnings in the form of gratuities or rewards shall be deemed to form part of his remuneration if they are paid on a regular basis and are not prohibited. In Brazil, section 457 of the Consolidation of labour laws specifies that for all statutory purposes, the remuneration of the employee shall include both the wages due from and paid directly by the employer in return for services and also amounts received by the employee by way of tips. The expression "tips" shall be deemed to include not only any amount given by a customer to an employee of his own free will but also any amount that the employer charges a customer as an addition to his bill, whatever the reason for the charge, if it is meant to be distributed among the employees. For the purposes of section 10 of the Labour Code of Panama, dealing with equal pay, tips are likewise included in the wage, while under section 132 of the Labour Code of Colombia, tips paid to the employee shall not be considered as part of his wages, and no stipulation may be made to the effect that sums received by the employee by way of tips shall be considered as wages for his services. While the last provision appears aimed at ensuring the payment of regular wages to the employee, the opportunity of collecting tips, provided by the employer in connection with the employment, may be considered as an indirect payment for the purposes of the Convention at least where the employer has some degree of control over the final distribution of sums collected as tips.

III. Centrally fixed remuneration

93. Reference has been made in paragraph 62 above to a nationwide job classification system to be established under section 104 of the Workers' Conditions of Employment Act of Algeria for the purpose of determining the wage corresponding to each job and of applying the principles "To each according to his work" and "Equal work, equal pay". Section 127 of the same Act provides that wage fixing shall be a government responsibility and shall not be delegated to undertakings. Subject to transitional provisions concerning family allowances and transport and food allowances, which shall be progressively abolished, section 139 provides that a worker's wage shall be constituted, to the exclusion of all other elements, by a "wage for the job", supplemented, where appropriate, by a "local allowance" representing bonuses corresponding to the geographical area and/or sector and by an element representing additional remuneration corresponding to the quantity, quality, productivity and results of the work. The "wage for the job" shall consist of the following elements, defined in sections 132 and 146 to 162 of the Act: the basic wage, reflecting the index fixed for the worker's job, danger allowances, shift allowances, individual output bonuses or penalties, overtime allowances or flat-rate permanent service allowances, and experience allowances. The "additional remuneration" referred to in section 139 shall consist of a collective output bonus or penalty, used to recognise the productivity of a group of workers, and a share in the results of the undertaking, defined in sections 165 to 170 of the Act. Thus, all elements of remuneration are to be co-ordinated following a single nation-wide method, to be implemented inter alia through laws and regulations aimed at progressively reducing and finally eliminating all disparities existing in systems of remuneration. (Endnote 250)

94. In the USSR, the Fundamental Principles governing the Labour Legislation (Endnote 251) provide in articles 36 et seq. for wage standardisation to be carried out by the State with the participation of the trade unions, and wage rates to be fixed in a centralised manner. To supplement systems of remuneration for work according to the time worked or at piece-rates, workers may receive additional payment in the form of bonuses depending on the results of work achieved by the end of the year, such bonuses being paid out of the profits made by the undertaking, establishment, institution or organisation. The amount of the bonuses shall be determined by the quality of the manual or non-manual workers' work and his length of service in the undertaking, establishment, institution or organisation. The management of the undertaking, establishment, institution or organisation shall approve rules for awarding bonuses in agreement with the works', local or branch union committee. Articles 39 to 48 of the Fundamental Principles provide, inter alia, for the fixing of standard output quotas, for overtime rates and remuneration for night work and work on public holidays; and wage guarantees to workers while performing their state or social obligations or while on mission or transfer to employment in another locality. Similar provisions are included in the labour codes of Union Republics, and, to a varying extent, in the labour codes of Angola, Cuba, the German Democratic Republic, Mongolia, and Romania. (Endnote 252) Where wage rates and systems are established centrally by a national authority, the ground is laid for a comparative evaluation of all jobs throughout both the economy and the public administration for the purpose of applying the Convention. (Endnote 253)

D. The scope of legislation

95. Laws embodying the principle of equal remuneration, whether they are special laws on the implementation of the principle as such, or labour codes in which the principle is enshrined, have their own scope of application which may leave out certain groups of workers.

96. Public sector. In a number of countries, such as Algeria, Angola, Australia, (Endnote 254) Canada, (Endnote 255) Cuba, Denmark, France, German Democratic Republic, India, Ireland, Israel, Italy, Mongolia, Norway, Philippines, Somalia, Sweden, United Kingdom, United States, USSR, public sector employees and officials are either not excluded from, or specifically included in, the scope of the legislation embodying the principle of equal remuneration, examined in this chapter. Elsewhere, the public sector as a whole or various categories of public servants may be excluded from the scope of this legislation; special laws or regulations adopted in the countries concerned to govern the employment of the persons concerned will be considered in Chapter V, section 1, below.

97. Domestic workers and family undertakings. In various countries the scope of legislation embodying the principle of equal remuneration does not extend to domestic workers (Endnote 256) and family workers. (Endnote 257)

98. Agricultural workers. In several countries, agricultural workers are excluded from the application of relevant laws (Endnote 258) or from their provisions concerning equal remuneration. (Endnote 259) Elsewhere, agricultural workers are explicitly included in labour codes. (Endnote 260)

99. As the Committee pointed out in paragraphs 64 and 65 of its 1975 general survey, workers in agriculture, family undertakings and domestic service are rarely protected by specific provisions regulating their conditions of work, although they constitute the majority of the wage earners in a number of countries. Economic or financial considerations cannot justify exceptions to a principle such as equal remuneration for women and men, and the countries concerned should endeavour to extend the application of the principle to all. In 1980, the Committee of Experts noted with satisfaction that, by June 1978, the scope of the 1976 Equal Remuneration Act of India had been extended to all sectors of employment or activity. (Endnote 261)

E. The indivisibility of equality

100. Reference has already been made (Endnote 262) to the fact that many difficulties often encountered in realising equal remuneration for work of equal value are intimately linked to the general status of women and men in employment and society: equal evaluation of work, and equal entitlement to all elements of remuneration cannot be achieved within a general context of inequality. This has to some extent been acknowledged in Paragraph 6 of the Equal Remuneration Recommendation, which links the application of the principle of equal remuneration, inter alia, to equal access to occupations and posts (subject to the protection of health and welfare) and to equal facilities for vocational training. These aspects of equality, and more generally the equality of opportunity and treatment of men and women in employment and occupation, have become a main theme of the 1958 Discrimination (Employment and Occupation) Convention (No. 111) and Recommendation (No. 111). In paragraph 38 of its general report of 1980, (Endnote 263) the Committee noted that law and practice in a growing number of countries are tending to recognise that the aim of eliminating discrimination between men and women workers in respect of remuneration for work of equal value "cannot be reached in a satisfactory way unless national policy also aims at eliminating discrimination on the basis of sex in respect of access to the various levels of employment, as provided by Convention No. 111". This view is more and more shared by governments, employers and workers. For instance, in its 1982 report, (Endnote 264) the Committee noted the conclusion by the Government of the Philippines that the major issue concerning the application of the Equal Remuneration Convention is not equal pay, but rather the equal job opportunities open to women workers. In its article 19 report on the Equal Remuneration Recommendation, the Government of the USSR indicates that the implementation in practice of the principle of equal pay for work of equal value cannot be viewed separately from the partiipation of women on an equal footing with men in productive activity, and a series of other principles bearing on the employment of women. (Endnote 265) In comments on the New Zealand Government's report on the Recommendation, the New Zealand Employers' Federation mentions positive action it has taken to promote the creation of conditions of equal opportunity within firms or companies. In comments on the application of the Convention for the period 1983-85 in India, the Centre of Indian Trade Unions indicates that after the passing of the Equal Remuneration Act 1976, wage inequality continued, inter alia, where women workers employed for about 10 to 12 years by the South Central Railway Administration were made casual as soon as the notification of Equal Wage was applied to railways, while their junior male colleagues were being absorbed permanently, and that this has affected their emoluments, social security and retirement benefits including pensions. (Endnote 266)

101. Comprehensive approach. A rapidly growing number of States have adopted or prepared legislation dealing comprehensively with all aspects of equality of opportunity and treatment for men and women related to employment, often also establishing special machinery for translating the principle into practice. Many constitutional provisions and several equal treatment laws quoted in this chapter in fact follow this approach, and countries having first adopted specific laws on equal remuneration have followed up with broader legislation on equal status. While certain aspects of these wider concerns will be considered in some detail in Chapters IV and V below, the Committee has considered it appropriate to reserve the issues of equal treatment and opportunity in employment, although intimately linked to the subject of the present survey, for full consideration on the occasion of its general survey of 1988 on the effect given to the 1958 instruments on discrimination in respect of employment and occupation, so as to avoid unnecessary duplication.

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

Endnote 34

Endnote 35

Endnote 36

Endnote 37

Endnote 38

Endnote 39

Endnote 40

Endnote 41

Endnote 42

Endnote 43

Endnote 44

Endnote 45

Endnote 46

Endnote 47

Endnote 48

Endnote 49

Endnote 50

Endnote 51

Endnote 52

Endnote 53

Endnote 54

Endnote 55

Endnote 56

Endnote 57

Endnote 58

Endnote 59

Endnote 60

Endnote 61

Endnote 62

Endnote 63

Endnote 64

Endnote 65

Endnote 66

Endnote 67

Endnote 68

Endnote 69

Endnote 70

Endnote 71

Endnote 72

Endnote 73

Endnote 74

Endnote 75

Endnote 76

Endnote 77

Endnote 78

Endnote 79

Endnote 80

Endnote 81

Endnote 82

Endnote 83

Endnote 84

Endnote 85

Endnote 86

Endnote 87

Endnote 88

Endnote 89

Endnote 90

Endnote 91

Endnote 92

Endnote 93

Endnote 94

Endnote 95

Endnote 96

Endnote 97

Endnote 98

Endnote 99

Endnote 100

Endnote 101

Endnote 102

Endnote 103

Endnote 104

Endnote 105

Endnote 106

Endnote 107

Endnote 108

Endnote 109

Endnote 110

Endnote 111

Endnote 112

Endnote 113

Endnote 114

Endnote 115

Endnote 116

Endnote 117

Endnote 118

Endnote 119

Endnote 120

Endnote 121

Endnote 122

Endnote 123

Endnote 124

Endnote 125

Endnote 126

Endnote 127

Endnote 128

Endnote 129

Endnote 130

Endnote 131

Endnote 132

Endnote 133

Endnote 134

Endnote 135

Endnote 136

Endnote 137

Endnote 138

Endnote 139

Endnote 140

Endnote 141

Endnote 142

Endnote 143

Endnote 144

Endnote 145

Endnote 146

Endnote 147

Endnote 148

Endnote 149

Endnote 150

Endnote 151

Endnote 152

Endnote 153

Endnote 154

Endnote 155

Endnote 156

Endnote 157

Endnote 158

Endnote 159

Endnote 160

Endnote 161

Endnote 162

Endnote 163

Endnote 164

Endnote 165

Endnote 166

Endnote 167

Endnote 168

Endnote 169

Endnote 170

Endnote 171

Endnote 172

Endnote 173

Endnote 174

Endnote 175

Endnote 176

Endnote 177

Endnote 178

Endnote 179

Endnote 180

Endnote 181

Endnote 182

Endnote 183

Endnote 184

Endnote 185

Endnote 186

Endnote 187

Endnote 188

Endnote 189

Endnote 190

Endnote 191

Endnote 192

Endnote 193

Endnote 194

Endnote 195

Endnote 196

Endnote 197

Endnote 198

Endnote 199

Endnote 200

Endnote 201

Endnote 202

Endnote 203

Endnote 204

Endnote 205

Endnote 206

Endnote 207

Endnote 208

Endnote 209

Endnote 210

Endnote 211

Endnote 212

Endnote 213

Endnote 214

Endnote 215

Endnote 216

Endnote 217

Endnote 218

Endnote 219

Endnote 220

Endnote 221

Endnote 222

Endnote 223

Endnote 224

Endnote 225

Endnote 226

Endnote 227

Endnote 228

Endnote 229

Endnote 230

Endnote 231

Endnote 232

Endnote 233

Endnote 234

Endnote 235

Endnote 236

Endnote 237

Endnote 238

Endnote 239

Endnote 240

Endnote 241

Endnote 242

Endnote 243

Endnote 244

Endnote 245

Endnote 246

Endnote 247

Endnote 248

Endnote 249

Endnote 260

Endnote 261

Endnote 262

Endnote 263

Endnote 264

Endnote 265

Endnote 266

Legislation

See related national legislation from Natlex

Search text under country name.

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C111 Discrimination (Employment and Occupation) Convention, 1958
Recommendations:R111 Discrimination (Employment and Occupation) Recommendation, 1958