Chapter IV. Implementing the principle: The tools

102. The incorporation of the principle of equal remuneration into national law (reviewed in the preceding chapter) is an important undertaking to ensure its application to all workers within the scope of the law. (Endnote 1) Further steps are, however, needed to translate the principle into practice. The measures taken by governments, often in co-operation with employers and workers, to secure respect for the principle of equal remuneration, differ according to national conditions. Where the principle of equal remuneration is embodied in the Labour Code, the task of enforcement will often be entrusted to agencies with a general responsibility for supervising the application of labour legislation. Where equal remuneration has been made the subject of special legislation dealing with equal remuneration or equal treatment in employment, specific provision has also usually been made for its implementation through a range of measures, such as the definition of non-discriminatory job evaluation criteria and systems, the creation of a specialised agency with adequate powers, the co-operation with employers' and workers' organisations for the implementation of the principle, the possibility for trade unions to bring court actions, the reversal of the burden of proof where discrimination is alleged, the protection against reprisals, the nullity of discriminatory wage rates and the recovery of wages due, and the obligation of employers to keep records. The following sections will review the roles of labour inspection, specialised bodies and the courts in promoting, enforcing or supervising the implementation of the principle; the responsibilities of employers and workers; methods of job evaluation; the remedies available to aggrieved persons; and other factors to facilitate implementation.

Section 1. Bodies to promote, enforce or supervise implementation of the principle

(a) Labour inspection

103. The majority of governments indicate that the enforcement of equal pay legislation is entrusted to the labour inspection service. In most of these cases, the supervision of equal pay provisions falls within the competence of inspectors who are more generally responsible for securing the implementation of all labour laws and regulations, including those relating to social security, health and safety. Elsewhere, prescriptions regarding equal pay are to be supervised by a specialised service of the inspectorate with responsibility for a fairly narrowly defined area of interest. (Endnote 2) Specialisation by subject matter is found particularly in inspection systems based on the British model where, for example, officials may be entrusted solely with the enforcement of legal provisions relating to wages. (Endnote 3) However the labour system is organised, the Committee has noted the scarcity of information both on the extent to which inspection has actually been carried out and on the degree to which it has been effective in enforcing equal pay legislation. Only infrequently do the reports received from governments or the annual reports of the labour inspection services provide any information on violations noted or results achieved with respect to the implementation of the principle. While statistics of inspections concerning, more generally, compliance with wage legislation may, in some cases, relate to equal pay requirements, specific indications have been given only by a few governments, in particular Canada, (Endnote 4) India, Japan and New Zealand. However, even in these countries, the role of the labour inspectorate in bringing about compliance with the Convention appears rather limited when comparing the number of interventions made by labour inspectors in the field of equal remuneration with those in other fields.

104. The paucity of information on the role taken by labour inspectors in enforcing equal pay provisions may, to some extent, be related to the difficulties faced by many governments in establishing and maintaining adequate inspection services. Foremost among the problems noted by the Committee in its 1985 General Survey on Labour Inspection (Endnote 5) are those relating to the shortage of human and material resources. The personnel of the inspection services is often insufficient in number; there is considerable need for training of the inspectorate; and, in many cases, the facilities available (e.g. transport and communications) are inadequate. (Endnote 6) In these circumstances, it is not surprising that the inspectorates in many countries would be occupied more with problems of, for instance, safety and health than with ensuring conformity with a principle which is in many ways abstract and complicated to apply.

105. A number of governments have reported on initiatives being taken or considered to enhance the role of the labour inspectorate in securing conformity with equal pay legislation. Recent legislative enactments in some countries have, for example, made special provision for co-ordination between the labour inspectorate and specialised bodies dealing with questions of equal treatment of men and women workers. In Portugal, the labour inspectorate, which has responsibility for enforcing the decree on equality of opportunity and treatment for women and men in employment (Endnote 7) must first obtain the opinion of the Committee on Equality in Work and Employment where it has reasonable doubts as to the existence of a discriminatory situation or practice concerning the provisions on equality of treatment and equal remuneration. In Greece, the equal treatment legislation (Endnote 8) calls for sex equality offices to be set up in all the labour inspection services (directorates, sections, offices) to supervise its application. Any existing discrimination detected is to be brought directly to the attention of the Sex Equality Section of the Working Conditions Directorate at the Ministry of Labour. Under a provision of the Canada Labour Code (Endnote 9) an inspector under the Code may notify the Canadian Human Rights Commission or file a complaint with that Commission where he or she has reasonable grounds for believing that the equal pay provision of the Canadian Human Rights Act (section 11 of the Act) has been breached. A 1984 Canadian Royal Commission Report on Equality of Employment (Endnote 10) noted, however, that this provision, which came into force in 1978, has not yet been used. Measures to enforce equal pay have been intensified with the establishment in 1984 of an Equal Pay Programme in the Department of Labour, designed to eliminate sex discrimination against women working within the federal jurisdiction. In the framework of field officer education, the first of two-day basic workshops was held in 1985, to be followed by advanced training regarding the promotion of equal pay. Special briefing sessions were also held for labour inspectors of the Ministry of Labour in Belgium, following an opinion issued by the Commission on Women's Employment (an advisory body of tripartite composition attached to the Ministry of labour) which suggested methods to apply the principle of equal pay. (Endnote 11)

106. In considering measures to strengthen the means of supervision of equality of remuneration, some countries have emphasised the need for a greater involvement of workers and their representatives in the inspection process. The Government of Tunisia states in this regard, that consideration is being given to reinforcing the role of works committees and trade unions at the enterprise level, in particular, with a view to overcoming the fear of employer reprisals directed against women workers who complain to the authorities about discrimination in remuneration. Trade unions in the socialist countries of Eastern Europe are closely associated with the exercise of inspection functions. They are, in particular, empowered to exercise labour inspection functions in respect of labour legislation, including provisions dealing with equal pay. As concerns other measures to strengthen labour inspection, the Committee has noted that significant progress has been made in the last couple of decades regarding the more active recruitment of women inspectors and has drawn attention to the desirability of maintaining an adequate presence of women in the labour inspection staff in order to ensure a greater sensitivity to the problems of women workers. (Endnote 12) In this context, the Government of India has stated that consideration is being given to appointing women social workers as honorary inspectors under the Equal Remuneration Act, 1976 on an experimental basis.

(b) Specialised bodies to supervise, enforce or promote implementation of the principle

107. During the past decade, administrative agencies concerned with questions affecting working women have been established in a majority of countries. (Endnote 13) Agencies of this type are generally given a broad mandate by their enabling legislation or by administrative arrangement to eliminate discrimination and promote equality of opportunity and treatment in employment for women. In practice, most of these bodies (Endnote 14) undertake research and formulate policies on women's employment, co-ordinate and monitor governmental programmes, provide advice on the elaboration of legislation and play an active role in publicising measures designed to achieve equality for women. Examples of such bodies are found in all parts of the world. (Endnote 15) For instance, a governmental body has been created in Ghana to deal specifically with women workers' questions, to ensure the full integration of women in development and the elimination of all forms of discrimination and to serve as an advisory body to the Government on all matters relating to women. In Sri Lanka, a national committee was formed in 1975 for the International Women's Year consisting of representatives of various governmental organisations, trade unions, students' unions and other national or local organisations. By 1978, the Women's Bureau was acting as a coordinating body in the Ministry of Plan Implementation to ensure that all aspects of the development process involved women. Since then it has served as the central agency on women's questions with international organisations. In 1980, the Bureau drafted a charter for women that specifically included the demand for equality of rights in both public and private sectors, equal pay for equal work and maternity protection. Standing Commissions dealing with women's working and living conditions and the protection of mothers and children were formed in the USSR in 1976 under the two houses of the Supreme Soviet, the Council of the Union and the Council of Nationalities. The Commissions' powers include formulating proposals on issues relating to these matters for review by the corresponding governmental authorities. The Women's Bureau of Costa Rica was created in 1975 as part of the Ministry of Labour and Social Security and acquired the status of General Directorate for Women and the Family in 1980. The Bureau undertakes research on women workers' questions, offers professional training and provides family services.

108. In addition, the legislation establishing the right to equal pay (often within the context of measures to ensure equal treatment in employment generally) has, in a number of countries, (Endnote 16) also provided specifically for a specialised agency to play a role in its enforcement.

109. The creation of different bodies to carry out distinct functions in regard to equal treatment in employment has resulted in a multiplicity of such agencies in a number of countries. Sometimes, separate machinery exists to promote equality in a particular sector of employment; in other cases, each of a number of agencies may be concerned with different aspects of the equality question. In this section, particular attention will be paid to the role of those bodies vested with authority to enforce national legislation concerning equal treatment, including equal remuneration.

(i) Powers of enforcement

110. The specific powers and responsibilities conferred upon specialised bodies to implement equal employment policies, result in significant variations of approach between jurisdictions. In some countries, the competent body has the power both to receive and to initiate complaints or investigations concerning discrimination against women. This is the case with the specialised bodies responsible for enforcing sex equality legislation in, for example, Australia, Austria, Canada, New Zealand, Norway, Sweden and the United States. In other countries, the agency concerned is charged with enforcing the legislation primarily through receiving complaints (Greece, (Endnote 17) Iceland, the Netherlands and Spain); (Endnote 18) elsewhere the specialised body is empowered to eliminate discrimination by undertaking investigations at its own initiative rather than by dealing with individual complaints (e.g. Ireland, the United Kingdom).

111. Agencies empowered to consider complaints are, in some cases, required to resolve disputes through conciliation. In Canada, (Endnote 19) the Human Rights Act empowers the Human Rights Commission both to initiate complaints where the Commission has reasonable grounds for believing that a person is engaging in a discriminatory practice and to receive complaints. At the conclusion of an investigation, the Commission may, among other options, substantiate the complaint and appoint a conciliator to seek a settlement of the complaint. While the Commission may, at any stage after the filing of a complaint, appoint a Human Rights Tribunal to inquire into a complaint, the great majority of complaints are settled during the investigation or conciliation stages. (Endnote 20) This conciliation approach to settling complaints has been taken in a number of countries. Under the legislation establishing the Human Rights Commission of New Zealand, the Commission must try to secure a settlement between the parties where, after investigation, it is of the opinion that a breach of the legislation has occurred. (Endnote 21) In Australia, a complaint to the Human Rights Commission, which appears to involve an unlawful act under the Sex Discrimination Act, (Endnote 22) is referred to the Sex Discrimination Commissioner who investigates and endeavours to settle the matter by conciliation. (Endnote 23) If no agreement is reached, the Commissioner may refer the matter back to the Commission which may conduct its own inquiry and again endeavour to resolve or effect settlement of the complaint by conciliation. Similarly, the duty of the Equality Commissioner (Ombudsman) in Sweden is defined as being primarily to induce employers to comply with the provisions of the Equal Opportunities Act (Endnote 24) on a voluntary basis; and in Norway, the Equal Status Commissioner (Ombud) shall, on his/her own initiative or on the basis of an application from any third party, endeavour to secure compliance with the provisions of the Act through voluntary settlement. (Endnote 25) In the United Stats, the Equal Employment Opportunity Commission, which is charged with administering Title VII of the Civil Rights Act 1964 and enforcing the Equal Pay Act 1963, is required to attempt informal conciliation only in respect of disputes under Title VII (dealing with discrimination in compensation, terms, conditions or privileges of employment, among other unfair labour practices). The Commission does not have to attempt to effect conciliation between the parties before filing suit under the Equal Pay Act. (Endnote 26)

112. While in practice specialised bodies may be able to assist in bringing about voluntary settlements between the parties in most cases, some means of enforcement beyond conciliation is required if the guarantees of equal pay and equality of opportunity and treatment are to be implemented effectively. In Canada and New Zealand, the legislation establishing a Human Rights Commission also provided for the establishment of administrative tribunals before which civil proceedings may be brought, either by the Commission or the complainant, for the adjudication of complaints not settled by conciliation. Orders of the tribunals may, upon registration in the relevant court in each country, be enforced as orders of the court. If the Equal Status Commissioner in Norway fails to bring about a voluntary settlement, the matter may be submitted to the Equal Status Appeals Board which may order whatever measures are necessary to ensure conformity with the legislation. The Commissioner may also make such orders where there is a reason to assume that difficulty or prejudice would arise were the matter to await a decision by the Board. The Board does not have the power to take a decision binding the Crown or any ministry; it may however express an opinion regarding the degree to which administrative decisions are in conformity with the legislation. (Endnote 27) In other countries, adjudication of a dispute is before the courts. If the Equal Employment Opportunity Commission of the United States is unable to resolve a complaint concerning discrimination under Title VII through mediation and conciliation, a court suit may be brought against the alleged violator either by the Commission or by the aggrieved individual. (Endnote 28) An employee alleging a violation of the Equal Pay Act may either present the claim directly to a court or may rely on the Commission to make an investigation and file a law-suit on the individual's behalf. (Endnote 29) Where voluntary agreement has not been reached in a sexual discrimination complaint, the Equality Commissioner in Sweden may institute proceedings in the Labour Court on behalf of any individual in cases where the Commissioner considers that a judgement in the dispute is important for the application of the law. However, when the complainant is a member of a trade union, the Commissioner may only institute legal proceedings if the organisation does not do so. Apart from dealing with infringements of the ban on sexual discrimination, the Commissioner is charged with ensuring that employers conform with their obligation under the Act, (Endnote 30) to adopt a policy for the active promotion of equality at work. Cases concerning shortcomings in this area may arise either as a result of complaints or at the initiative of the Commissioner. Failing agreement with the employer on the way active measures for the promotion of equality between women and men are to be planned and conducted in future, the Commissioner may apply to the Equal Opportunities Board for a penal injunction. (Endnote 31)

113. Following the prescribed conciliation procedure, the Australian Human Rights Commission may make a determination in respect of substantiated complaints which remain unsettled. A determination may call upon the employer not to repeat or continue unlawful conduct, to take action to redress any loss or damage suffered by the complainant or to promote, employ or re-employ the complainant. The Commission's determinations are not binding or conclusive between any of the parties to the determination: the Commission or complainant may, however, institute a proceeding in the Federal Court for an order to enforce the determination. (Endnote 32)

114. Evidence of anything said or done in the course of conciliation proceedings is usually inadmissible as evidence in any subsequent proceedings. In addition to protecting the parties, such a situation is considered to facilitate conciliation: parties to a dispute are unlikely to enter into constructive negotiation if there is a possibility that their discussions will be submitted as evidence at a subsequent inquiry or hearing. (Endnote 33)

115. In those countries where the specialised body is not specifically required to conciliate complaints in the way described above, an attempt to secure voluntary compliance with the legislation is made before legal proceedings are taken to enforce the matter. Similar procedures have been adopted in Austria (Endnote 34) and Iceland (Endnote 35) to mediate allegations of infringements of the equality legislation. If, after examination, it appears that the legislation has been infringed, proposals for specific action to remedy the breach are submitted to the party concerned. The Equal Status Council in Iceland is authorised to initiate legal proceedings to establish the recognition of a party's rights where its proposals for amendment are not accepted; and in Austria, application may be made to the competent labour court, by designated employers' or workers' bodies, for confirmation that the principle of equality has been infringed where the employer does not comply with a proposal of the Equality of Treatment Committee within one month. Mention may be made here of the situation in the Netherlands where claims before the court for the payment of wages under the equal pay legislation are not receivable unless the worker submits an opinion from the specialised body. According to the provisions of the legislation, (Endnote 36) the Committee on Equal Treatment for Men and Women at Work shall, on the application of a worker, an employer or both, furnish the parties with a written and substantiated opinion on the worker's wage entitlement under the Act. This opinion, whether it finds in favour of or against the applicant, must, as mentioned above, be produced before a worker's claim is receivable before the competent court.

116. As noted above, the respective bodies responsible for working towards the elimination of discrimination and promoting equality of opportunity and treatment in employment in the United Kingdom (Endnote 37) and in Ireland (Endnote 38), are largely divested of the task of investigating individual complaints. Complaints of discrimination in the United Kingdom are dealt with by industrial tribunals; in Ireland, disputes are investigated by Equality Officers of the Labour Court. The agencies in both countries are, however, empowered to assist individuals who wish to assert their rights to take legal action, when the matter raises a question of principle or when the plaintiff cannot reasonably be expected to take the necessary steps without assistance. When the Government of the United Kingdom was considering the various types of enforcement agency that it might establish, it felt there would be certain disadvantages in entrusting a body with the investigation and conciliation of individual complaints. Apart from the cost of establishing a large administration, the Government was concerned that complainants would feel justifiably aggrieved at being denied the right to seek legal redress while the complaint was being processed; and that the agency would be distracted, by an ever-increasing backlog of individual complaints, from playing its crucial general role in changing discriminatory practices and encouraging positive action to secure equal opportunity. (Endnote 39) It would be misleading to suggest, however, that the notion of conciliation is entirely absent from the procedures for dealing with equal pay claims in the United Kingdom: the Advisory Conciliation and Arbitration Service (ACAS) has a statutory duty to attempt conciliation in complaints by individuals against employers made to industrial tribunals under the Equal Pay Act. Both the British and Irish specialised bodies are empowered to conduct investigations (at their own initiative, or as required by the Minister responsible) into suspected unlawful acts or discriminatory practices. After such formal investigations, the body in each country may recommend changes in practices or procedures, or if satisfied that there has been a breach of the equal pay or sex discrimination legislation, issue a non-discrimination notice requiring the recipient not to commit any unlawful discriminatory practices or acts and, where compliance involves changes in practices, to effect such changes. Breaches of non-discrimination notices within the next five years and other cases of persistent discrimination may be restrained by court injunction or order.

(ii) Power to review legislation

117. An important function of some specialised bodies is that of reviewing existing and proposed laws, regulations and practices to determine the existence, or possibility, of problems in applying the principles of equal pay and equal opportunity and to advise on such review, including recommendations for change, to the appropriate minister. The Committee has noted with interest that, in a number of cases, proposals for the amendment of legislation have been made by the body responsible for its enforcement, in order to ensure full application of the principles of equality. In Ireland, the Employment Equality Agency recently presented proposals to broaden the scope of both the equal pay and the employment equality legislation; and action was taken to review the legislation in co-operation with the social partners and other interested bodies. Included among the proposals were recommendations for extending the scope of the Employment Equality Act to cover contract workers; and to place the onus of proof on the employer or other respondent to show that discrimination did not take place against the applicant, where a set of facts in which the applicant could be discriminated against has been proven. The Agency also proposed that it be enabled to provide financial assistance to employees actually or prospectively involved in legal proceedings under the equal pay legislation. (Endnote 40) The Swedish Equal Opportunities Commissioner (Ombudsman) has also indicated that proposals have been made to the Minister of Labour for certain amendments to the Equal Opportunities Act. As regards the material provisions of the Act, the Commissioner observed that problems existed with respect to the possibilities of proceeding against subsequent discrimination, that is, the harassment of persons reporting sexual discrimination. (Endnote 41) Substantial amendments to the Canadian Human Rights Act in 1983 featured a number of changes sought by the Human Rights Commission. (Endnote 42) The amendments covered, inter alia, an expanded definition of sex discrimination and specific employer responsibility for discrimination by its employees. More recently, the Commission has recommended to Parliament that the Act be further amended to apply clearly to indirect discrimination. In the view of the Commission, this amendment would ensure that the Act applies to neutral policies that, although applied evenhandedly, hinder certain groups from having equal opportunities, such as height and weight requirements that are not necessary to fulfil the essential duties of a job and that result in excluding women disproportionately. (Endnote 43) As mentioned elsewhere in this report, (Endnote 44) the Canadian Human Rights Commission is also empowered to adopt equal wage guidelines which are binding on itself and on human rights tribunals. The present guidelines se out definitions of the criteria provided for under the Act for assessing the value of the work (viz. skill, effort, responsibility and working conditions); and prescribe the factors which may be used to justify differences in wages paid to men and women performing work of equal value. (Endnote 45) Recently, the Commission formulated draft guidelines concerning, among other matters, the procedures for dealing with complaints involving occupational groups, where the complaining group must be predominantly of one sex and the group(s) to which a comparison is to be made, predominantly of the other sex; and the criteria for determining when a group of employees is to be considered predominantly male or predominantly female. (Endnote 46) Lastly, a number of advisory and promotional bodies established over the last decade in other countries have been given authority to review legislation and make recommendations for the adoption of new provisions to apply the principles of equal pay and equal treatment. For example, the National Equality Council in France is to advise on draft legislation aimed at ensuring occupational equality between men and women as well as on texts concerning particular working conditions for either sex. (Endnote 47) Similar functions are carried out by the Committee on Equality in Work and Employment in Portugal (Endnote 48) and the National Committee on Women's Rights in Brazil. (Endnote 49) By a recent legislative enactment in Tunisia, a division of the Ministry for the Family and the Promotion of Women is charged, among other things, with proposing measures and legislative texts to improve the situation of the family and of women in particular, in the fields of public law, personal rights and in social and economic legislation. (Endnote 50)

(iii) Effectiveness of specialised agencies

118. The degree to which specialised bodies are effective in promoting and enforcing guarantees for equal pay and equal treatment obviously depends, to a large extent, on the scope of these guarantees under national legislation, considered in Chapter III above. Equally important, however, are the powers assigned to specialised bodies. Accordingly, some governments have found it necessary to review and modify an agency's powers and responsibilities during the course of its activities. (Endnote 51) While major changes to an agency's duties usually require legislative action, it appears that most national bodies are themselves permitted a wide discretion in determining their own enforcement priorities. The Committee has noted from the reports provided by governments that the elimination of indirect discrimination has become a priority for a number of specialised bodies. (Endnote 52) In addition to their enforcement role, specialised bodies of the type described in this section generally perform a wide range of educational, advisory and promotional activities, such as conducting special programmes to assist employers to comply with the equality legislation, holding seminars in the community and responding to individual inquiries. These diverse activities are required for the legislation to have any real impact. (Endnote 53) This in turn necessitates adequate resources being made available to the specialised bodies. (Endnote 54)

(c) The courts: Interpretations of the principle

119. In some countries, progress in the implementation of equal pay has been brought about more by judicial interpretation than legislative action. On the basis of broadly -- stated or, in other cases, relatively restrictive constitutional or legal provisions, the courts in a number of jurisdictions have been responsible for developing concepts of "equal pay" and definitions of "remuneration" corresponding to those of the Convention. Mention has already been made of the situation in both the Federal Republic of Germany and in Italy (see paragraph 39 above) where the application of the principle of equal pay for work of equal value has been made clear by the constitutional courts through a body of jurisprudence based on general constitutional provisions, developed well before the enactment of legislation guaranteeing the enjoyment of the right to equal pay in more detailed terms (paragraph 49).

120. Judicial decisions in the United States have also brought about important gains for the application of equal remuneration principles. In that country, equal pay for men and women workers is implemented principally through two federal laws: the Equal Pay Act of 1963 (see paragraph 61 above) and Title VII of the Civil Rights Act of 1964 (see paragraph 68). The Equal Pay Act requires an employer to pay equal wages in an establishment to men and women doing equal work on jobs requiring equal skill, effort and responsibility, and which are performed under similar working conditions, unless one of four "affirmative defences" is established: wage differentiation between men and women performing the same job is permitted if it results from a seniority system, a merit system, a system which measures earnings by quantity or quality of production or a differential based on any other factor other than sex. The scope of equal work under the Equal Pay Act has been the subject of a number of judicial interpretations. The courts generally have found that to prove a violation, it is not necessary that the job be absolutely equal or identical. It is sufficient that they be "substantially equal". (Endnote 55) Title VII of the Civil Rights Act prohibits discrimination on the basis of race, colour, religion, sex or national origin in all employment practices, including compensation. The Equal Pay Act was partially incorporated into Title VII via the Bennett Amendment, which states: "It shall not be an unlawful employment practice under this title for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorised by the provisions of (the Equal Pay Act)". The interrelationship between the Equal Pay Act and Title VII was uncertain for a number of years. Some judicial interpretations had held that the wage discrimination requirements of the Equal Pay Act and Title VII must be read "in pari materia" (that is, i harmony); i.e. that jobs being compared to establish claims of pay discrimination against women under Title VII must meet the Equal Pay Act standard of "substantially equal". An alternative interpretation held that the Bennett Amendment was meant to incorporate only the defences available to an employer that are enumerated in the Equal Pay Act (so that, if an employer could show that pay differences stemmed from seniority, merit, differences in productivity, or differences in any factor other than sex, then those differences in pay were not illegal) but did not limit the scope of Title VII to discrimination between persons performing work of a substantially equal nature. (Endnote 56) The issue was resolved in 1981 when the US Supreme Court ruled, in County of Washington et al. v. Gunther et al. in favour of the latter interpretation". (Endnote 57) The Supreme Court emphasised, however, that the claim was not based on the concept of comparable worth; rather, the women were seeking to prove, by direct evidence, that their wages were depressed because of intentional discrimination. The broad remedial purposes of Title VII and the Equal Pay Act required the Court, in its view, to avoid interpretations of Title VII that deprive victims of discrimination of a remedy without clear congressional mandate. If it were held that only those sex-based wage discrimination claims that satisfy the "equal work" standard of the Equal Pay Act could be brought under Title VII, this would mean, stated the Court, that a woman who is discriminatorily underpaid could obtain no relief -- no matter how egregious the discrimination might be -- unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay.

121. Many cases have been filed in the United States courts in the wake of Gunther. A report by the Comptroller General of the United States notes that since the Gunther decision, "it appears that courts have expressed a preference for the findings of intentional discrimination and have rejected claims based solely on the theory of comparable worth". (Endnote 58) In litigation which raises the issue of comparable worth, courts have sometimes been called upon to examine various aspects of job classification systems and pay-equity studies undertaken by the employer. As the Comptroller General's report observes, "Generally, Federal Courts have been unwilling to identify strengths or deficiencies in specific job-evaluation methodologies ... although several courts have commented on statistical models employed in wage-discrimination litigation". (Endnote 59)

122. Finally, it is interesting to note that, in considering employers' arguments that the elimination of sex discrimination in compensation would be too costly, the American courts have held that Title VII does not countenance a cost justification. (Endnote 60)

123. In considering the interpretation to be given to the concept of equal pay for the "same or substantially the same work" (Endnote 61) the National Labour Court in Israel ruled that the law must be interpreted on the assumption that the legislator intended to uphold Convention No. 100, which Israel had ratified. The Court also stated that in determining whether work is the same or substantially the same, it is clear that the opinion of an expert on occupational analysis will not only further the deliberation but will also contribute to its proper solution, even though no such requirement is prescribed in the legislation. (Endnote 62)

124. Judicial decisions have also served to expose unforeseen anomalies in the legislation of some countries. Under the Anti-Discrimination (Pay) Act 1974 in Ireland, persons are regarded as employed on "like work" where, inter alia, the work performed is of a similar nature on the whole or "where the work performed by one is equal in value to that performed by the other in terms of the demands it makes in relation to such matters as skill, physical or mental effort, responsibility and working conditions". (Endnote 63) In two separate claims for equal pay under the legislation, a comparison of the work performed by the female complainant concerned, with that of a male worker (on the basis of factors such as skill, physical and mental effort, responsibility and working conditions) showed that the work performed by the women was higher in value than that of the men. In both cases, the work performed by the women was thus found not to be "like work" within the terms of the legislation; and equal pay was not therefore awarded. In reporting these matters, the Irish Employment Equality Agency (Endnote 64) expressed its concern about this problem and stated that it was seeking to have the "like work" section of the Act amended to make provision for Equality Officers to recommend remedies in situations where it has been found that a claimant is, in fact, performing work of higher value than the person with whom the comparison is made.

(i) Definition of remuneration

125. Numerous cases involving claims for equal pay in respect of benefits supplementing the basic or ordinary wage have come to the attention of the Committee. (Endnote 65) For this reason, it is possible to refer only to a representative selection of them to illustrate the various ways in which discrimination may arise.

126. A number of cases have concerned the payment of allowances to the "head of the household" in conditions discriminatory to women. This question arose in a Japanese case where the salaries of bank employees were supplemented by allowances accorded to heads of families. Whereas eligibility for this payment was in no way limited in so far as male employees were concerned, female employees only retained eligibility for the payment so long as their husbands' salaries remained below a specified level. The court interpreted the bank's salary regulations as reflecting a presumption by the bank that only males served as head of families. In the view of the court, such a situation discriminated against female employees. Accordingly, the court found that the criterion of sex was not justifiable and nullified the regulation in question. (Endnote 66) Cases concerning discrimination based on sex have also arisen in other countries where the payment of various benefits, in cash or in kind, were connected with the concept of "head of household", on the implicit or explicit assumption that only males were to be so considered. Among examples of infringement proceedings initiated by the European Court which led to remedial action by the countries concerned may be mentioned the case against Luxembourg in respect of the payment of family allowances granted to civil servants and equivalent staff in conditions constituting discrimination against women. (Endnote 67) Similarly, proceedings were initiated against Belgium in connection with an order which laid down different conditions for men and women in the granting of an accommodation or residence allowance to the staff of Ministries (Endnote 68) and against France, where a housing allowance for members of the staff of mines was granted only to heads of households (defined as married men, men caring for dependent parents or siblings and married women with dependent husbands). (Endnote 69)

127. Two further decisions illustrate how the definition of "pay" has been construed broadly to cover considerations not paid directly to the employee. In one case, male and female clerical workers in a bank were contractually obliged to join the bank's pension scheme. The women's scheme was not contributory to the age of 25, while men below that age paid pension contributions of 5 per cent of their salaries. To compensate for this, men under 25 years of age received an addition to their gross pay of 5 per cent, so that their net pay was the same as the women's. However, men leaving the bank's employment received a refund of pension contributions with interest whereas women resigning before the age of 25 received no such payment. The European Court of Justice, to which the question had been referred by the British Court of Appeal, ruled that a contribution to a retirement benefit scheme which is paid by an employer in the name of employees, by means of an addition to the gross salary and which therefore helps to determine the amount of that salary, constitutes "pay" within the meaning of Article 119 of the EEC Treaty. (Endnote 70) The term remuneration has also been held to cover facilities granted voluntarily by an employer to former employees. In the particular case, a woman alleged discrimination on the grounds that female employees of British Rail ceased to enjoy travel concessions for their families upon retirement where male employees continued to be granted the facility. The European Court concluded that the travel concessions were in the nature of a grant in kind to the employee or his/her dependants directly or indirectly in respect of his/her employment and as such, constitute "pay" within the meaning of Article 119. Where an employer (although not bound to do so by contract) provides special travel facilities for former male employees to enjoy after their retirement, this constitutes discrimination against former female employees who did not receive the same facilities. (Endnote 71)

128. In a matter before the Federal Labour Court of the Federal Republic of Germany, women workers claimed equal pay in respect of two wage supplements, an unspecified supplement and a special "employment market" supplement. The employer argued that the unspecified supplement was to compensate for particular hardships incurred by the night shift and was paid also because the night shift could not otherwise be filled. The Court rejected the first argument on the ground that compensation for the particular hardship was already served by a night shift supplement (received only by men in view of the prohibition on night work for women). Where, stated the Court, one supplement served a given purpose, it should generally be presumed that another supplement was not intended for the same purpose. The term "employment market" supplement failed to indicate clearly its purpose. If the supplement was granted because certain posts could not otherwise be filled, then there was no unlawful discrimination. If however the supplement was paid because men were unwilling to work for the same wages as women employed in the same posts under the same conditions, then the supplement constituted unlawful discrimination against women. (Endnote 72)

(ii) Indirect discrimination

129. In considering the application of equal pay legislation, the courts have been faced with cases of indirect as well as direct discrimination. Legal action involving part-time workers illustrates the difficulty of distinguishing between sex-based discrimination and a difference in the value of the work performed by the men and women workers concerned. A case in this area concerned an action in the United Kingdom by a part-time female worker who was paid a lower hourly rate than a full-time male worker employed on the same work. (Endnote 73) The European Court of Justice, to which the matter was referred for a preliminary ruling, held that a difference in pay between full-time and part-time workers does not amount to discrimination unless it is in reality merely an indirect way of reducing the pay of part-time workers on the ground that the group of workers is composed exclusively or predominantly of women. The British tribunal subsequently held that a differential in pay between part-time workers who are predominantly women and full-time workers could only be justified by showing a genuine "material difference" (within Section 1(3) of the Equal Pay Act). It was not sufficient for the employer to state that he did not have actual or covert intentions of discriminating against women. (Endnote 74) A similar decision was taken by the Federal Labour Court in the Federal Republic of Germany in the case of a female part-time worker who, under the pension regulations of the undertaking, was entitled to a pension only after 15 years of full-time employment. According to the Court, the general principle of equal treatment is deemed to have been infringed if pension regulations exclude part-time employees (who are predominantly women) as a whole from entitlement to benefits and there are no special grounds justifying such differentiation. The difference in the volume of work between full-time and part-time employment does not in itself constitute sufficient grounds. (Endnote 75) In Ireland, claims of female part-time workers for the same hourly rate of remuneration as that paid to male colleagues working full time have been resolved through comparing the different jobs on the basis of the criteria cited under the equal pay legislation, viz. skill, physical or mental effort, responsibility and working conditions. (Endnote 76)

(iii) Past discrimination

130. Claims for equal pay have occasionally been made on the basis that differences in the remuneration of men and women workers are the result of previous sex discrimination. In a case in the United Kingdom, a group of male workers had retained their higher rate of pay when job reorganisation had reduced the prescribed rate for the job. No woman was in this group because at the relevant time the grade was not open to women. The Employment Appeal Tribunal ruled that an employer can never establish that a variation between a man's and a woman's contract is genuinely due to a material difference (other than the difference of sex) when it can be seen that past sex discrimination has contributed to the variation. (Endnote 77) A case in the United States involved a Title VII challenge to an insurance company's practice of paying new sales agents a "monthly minimum" salary based in part on their prior earnings. The female plaintiffs argued that, since women's wages were historically depressed, the company's practice of basing wages on prior earnings operated to "freeze" the status quo. A district court found the company liable under Title VII because it paid women less than men for equal work, and because it failed to sustain its burden of proving that the wage differential was justified by a "factor other than sex", one of the Equal Pay Act's four defences. (Endnote 78) The court rejected the employer's argument that prior earnings constituted a legitimate factor based on the market rate, stating that "(a) resort to the so-called market rate where the market rate is itself a reflection of historical discrimination will not be considered as a sufficient justification under the Equal Pay Act". (Endnote 79)

(iv) Contemporaneous work

131. In claims for equal pay, the question has arisen as to whether a woman can compare her work with that of a man whose employment is not concurrent with her own. On a reference by the English Court of Appeal, the European Court of Justice established that it was possible under Article 119 of the Treaty of Rome for a woman to compare herself with a male predecessor who did equal work for the employer. (Endnote 80) A similar ruling was given by a labour court in Switzerland which granted a female complainant equal pay for work of equal value on the basis, in particular, of a comparison of the work performed by her with that of her male predecessor in the same job. (Endnote 81)

Section 2. Co-operation with employers' and workers' organisations

132. Without the active participation of employers and workers, no significant progress can be made in the implementation of the principle of equal remuneration. Specific recognition of the need for co-operative action between governments and organisations of employers and workers is in fact given both in the Convention (Article 4) and in a number of provisions of the Recommendation (Paragraphs 1, 2, 3(2) and (4) (see paragraph 31 above). The particular arrangements developed for tripartite consultation and co-operation in this area take on various forms depending, to a large extent, on the industrial relations system of the country concerned. Also apparent are differences in the degree to which employers' and workers' organisations are involved in procedures to enforce guarantees of equality. In some countries, their participation is an essential feature of the machinery established to promote and implement equality between men and women workers. Elsewhere, the available information suggests that they play only a limited role.

133. Some countries have introduced or are considering the adoption of legislation to require employers to undertake active measures for the promotion of equality between men and women. In Sweden, the Equal Opportunities Act (Endnote 82) which is designed to promote equal rights for women and men in questions of work, including equal pay for work of equal value, makes it the duty of the employer to undertake specifically planned measures for the promotion of equality. Among other things, this involves making special efforts to ensure that vacancies are applied for by persons of both sexes, and, by means of training and other suitable measures, to establish an even balance between women and men in various types of work and within employee categories. The rules concerning active measures for the promotion of equality may, however, be overridden or supplemented by collective agreements at national level, in which case the enforcement of such agreements becomes entirely the responsibility of the social partners. In practice, Equal Opportunities Agreements have been concluded between the employer and worker organisations concerned, for salaried employees and workers in the private sector and in the local government and state employment sectors. (Endnote 83) Under the provisions of proposed legislation in Finland, (Endnote 84) employers will be obliged to promote equality at the workplace. In Canada, an employer may be ordered by a human rights tribunal appointed by the Human Rights Commission to take affirmative action measures (called "special programmes" in Section 41 of the Human Rights Act) to prevent the occurrence of a discriminatory practice. Under the legislation, the Commission may, on application, also provide advice and assistance on the adoption or implementation of special programmes undertaken voluntarily by employers to eliminate or reduce the disadvantages suffered by certain groups by improving their opportunities in a number of areas including employment (Section 15(1)). In the opinion of the Human Rights Commission, volntary affirmative action was preferable in view of the lack of data on which to base a comprehensive programme and because of the desirability of allowing employers a certain flexibility. Since employers are not availing themselves of the opportunity to implement these programmes voluntarily, however, the Commission has recently expressed its support for mandatory affirmative action. (Endnote 85) The 1983 legislation concerning occupational equality between both sexes in France authorises the adoption of temporary measures to remedy occupational equalities suffered by women, within the framework of an "occupational equality plan" negotiated by both sides of industry at the plant level. (Endnote 86) Other examples of affirmative action programmes relating more particularly to equality of access in employment are discussed in section 6 below.

134. Under Article 2, paragraph 1 of the Convention, a government is obliged to ensure the application of the principle of equal remuneration in so far as this is consistent with the methods in operation for determining rates of remuneration. In the case of wage rates fixed by collective agreement, such an obligation would arise either where the binding force of collective agreements establishing wage rates is extended by state authority to workers or enterprises which were not represented by the parties to the agreement or where the principle of equal remuneration is embodied in national legislation empowering the government to enforce the principle more generally in respect of wage rates fixed by collective agreement. Where the government is not in a position to ensure observance of the Convention, it must promote its application (see paragraphs 24 to 29 above). The Committee has pointed out that measures of encouragement were of particular importance in a country where many collective agreements provided for different minimum wages for women and men, and where, while the authorities refuse to give general binding force to agreements containing differential rates for men and women for work of equal value, the great majority of collective agreements were not meant to receive general binding force. (Endnote 87) In this connection, the Committee has also stated that respect for the parties' freedom and independence in collective bargaining should not inhibit promotional action by the authorities, called for in the Convention, where this appears necessary for improving the practical application of a matter of public policy, such as equal remuneration. (Endnote 88) As concerns the concrete action which might be taken to give full effect to the Convention, the Committee has stressed the desirability of governments instituting, in co-operation with the occupational organisations, a general examination of collective agreements to bring to light any cases of discrimination that they might contain, including any of concealed discrimination. (Endnote 89)

135. Employers' and workers' organisations are usually consulted on, or participate in, the preparation of minimum-wage decisions. Numerous governments report that the occupational organisations concerned have a direct involvement in these deliberations as their representatives are members of the bodies responsible for minimum-wage fixing. Co-operative efforts in this regard are not only important for the better application of Convention No. 100 but are also requirements of the ILO instruments on minimum-wage fixing. (Endnote 90)

136. With a view to encouraging a more active involvement of employers' and workers' organisations in the implementation of equality legislation, a number of countries have also established enforcement agencies (described in section 1(b) above) with a tripartite composition. (Endnote 91) According to the reports provided by the Governments concerned, the promotional activities of these enforcement agencies are often undertaken in co-operation with employers' and workers' organisations. In Sweden, for example, the Ombudsman has arranged several seminars with the industrial organisations to discuss appropriate measures to eliminate existing differences between women's and men's remuneration. The measures discussed included the possibility for the social partners to allot special resources to jobs dominated by women within the context to regular wage negotiations; the possibility of the employer to devise an instrument for evaluating different jobs in order to be able to compare, for example, the jobs of nurses and plumbers, within the framework of his obligation to take active measures to promote equality; and the desirability to have wage statistics broken down by sex.

137. In its 1975 general survey (paragraph 170), the Committee observed that those sectors of employment exempted from the scope of equal pay legislation often also tend to be sectors ill-protected, if protected at all by trade unionism, e.g. the traditional sector, agriculture, the small undertaking and homeworkers, many of whom are women. The absence of trade union representation of particular sectors had adverse implications for the application of the Convention. Various studies have demonstrated that unionisation significantly improves women's earnings and decreases the earnings gap between men and women. One study showed that the male/female differential in unionised establishments is 10 per cent smaller than in non-unionised establishments. (Endnote 92) Such indications call attention to the need for trade unions to encourage women members' active participation and to play a more dynamic role in seeking to eliminate discrimination in employment. That trade union intervention may be a decisive influence in the field of equal pay, is evident from the statement of the Centre of Indian Trade Unions, which noted that the Equal Remuneration Act 1976 in India was implemented wherever pressure was brought by the trade union movement.

Section 3. Objective evaluation of jobs

138. Article 3, paragraph 1 of the Convention calls for measures to be taken to promote an objective appraisal of jobs on the basis of the work to be performed "where such action will assist in giving effect to the provisions of the Convention". As is apparent from the indications provided earlier in this report, (Endnote 93) the notion of paying men and women in accordance with the value of their work necessarily implies the adoption of some technique to measure and compare objectively the relative value of the jobs performed. Such a technique is moreover essential in determining whether jobs involving different work may none the less have the same value for the purposes of remuneration. Because men and women tend to perform different jobs, (Endnote 94) a technique to measure the relative value of jobs with varying content is critical to eliminating discrimination in the remuneration of men and women. Job evaluation, which provides a way of systematically rewarding jobs for their content, without regard to the personal characteristics of a worker, has come to be considered in an increasing number of countries as the most feasible technique of extending equal remuneration to men and women.

(a) Methods of job evaluation

139. Basically, job evaluation is a formal procedure which, through analysing the content of jobs, seeks to hierarchically rank those jobs in terms of their value, usually for the purpose of establishing wage rates. It is concerned with evaluating the job and not the individual worker. Before describing the basic methods of job evaluation, it is necessary to note that the two principal elements of any job evaluation plan are job analysis and job description. (Endnote 95) Job analysis entails a systematic examination of jobs to determine the nature of the tasks performed, the skill and effort required and the working conditions associated with a job. On the basis of the information thus collected, job descriptions are prepared, detailing the essential characteristics of each job. After job analysis and the preparation of job descriptions comes the essential stage of job evaluation, namely the systematic comparison of jobs in order to establish a hierarchy. There are four traditional types or methods of job evaluation. Of these the two major non-analytical methods of job evaluation -- the ranking method and the classification or grade description methods -- establish a hierarchy by comparing whole jobs without analysing their component factors. Under the two basic analytical methods of point rating and factor comparison, the duties of each job are broken down into common elements or factors to which points or other values are attributed, the total number indicating the importance of each job in the hierarchy. A brief description of each of the four basic methods will serve to illustrate their main features.

(i) Non-analytical methods: Ranking, grade description

140. Once the relevant information has been collected and job descriptions prepared, the ranking method proceeds by selecting and ranking a limited number of bench-mark or key jobs which are representative of a group of jobs. The remaining jobs are ranked in order of their overall importance around the bench-mark jobs. A wage structure is then fixed by grouping the resulting hierarchy of jobs into grades. This method is relatively simple and may quickly supply a basis for a coherent wage structure. It does, however, rely on the assessors being familiar with the content of the jobs they examine; and consequently is not easily applied in large organisations. Moreover, from the standpoint of equal pay, this method has the limitation that the job and personal characteristics of the incumbent may not be clearly separated. The grade description or classification method differs from ranking in that the order of operations are reversed. In grade description, the number and structure of grades (e.g., unskilled, semi-skilled, skilled and highly skilled) are determined and defined before the jobs are classified into those grades. A job evaluation scheme based on this method is more exact and objective than ranking because the grades have to be defined with reference to specified factors (e.g., education, skills, responsibilities, working conditions). The difficulty of defining grades clearly though, particularly in large enterprises where there are many jobs with very varied content, often leaves considerable scope for making subjective judgements.

(ii) Analytical methods: Point rating, factor comparison

141. The point rating method has certain advantages over the two non-analytical methods mentioned above: it permits a systematic comparison of jobs by employing explicit and clearly defined factors, thereby reducing the latitude for subjective decisions. In point rating systems, a set of factors is selected, generally based on an examination of bench-mark jobs. The factors are commonly variants of skill, effort, responsibility and working conditions, though the available choice of factors is very wide. For this reason the technique may be adapted to suit the target population (e.g. manual or clerical posts). A total point value or weight is assigned to each factor; and the jobs are evaluated on each factor to obtain a hierarchy. This method is particularly suitable for a large organisation which seeks to harmonise wages and working conditions in its various departments or establishments. It is, in fact, the most frequently used method in the majority of countries. It should be noted that, in this method, the selection and definition of factors is a critical step and care should be taken so that selected factors are free from sex bias or other forms of implicit discrimination. The other analytical method, the factor comparison method, was originally an offshoot of point rating. As originally developed, the factor comparison method involved the ranking of different jobs in respect of factors to which it assigned a scale of money values; the ranking of a job therefore determined directly its wage level. This wage-fixing procedure has been criticised strongly and nowadays many schemes based on factor comparison separate the job grading operation from wage fixing. Evaluation is easier than by the point method, as a set of similar jobs are compared and ranked against each other. The analysis of bench-mark jobs is also very complete under this method. On the other hand, the method is comparatively complicated to apply.

142. Finally, it should be mentioned that there have been a number of innovations in job evaluation over the years. The four conventional methods have undergone improvements and a number of new methods have emerged, often comprising various features of the basic methods. For the most part, these developments have been prompted by a concern to reduce the degree of subjectivity in job evaluation, notably in the choice and weighting of factors or to make job evaluation more consistent by incorporating elaborate verification procedures. Efforts have also been made to reduce the costs involved and to ensure a greater acceptability of job evaluation schemes by increasing the involvement of workers and management in all stages of the process.

(b) The extent and levels at which job evaluation is practised

143. The extent to which job evaluation is used differs not only between countries but also between national sectors of industry and individual enterprises. Accordingly, it is very difficult -- especially in the absence of detailed information -- to determine with any great precision, the proportion of workers covered by job evaluation plans in most countries. At the outset, it should be noted that there is not necessarily any direct connection between the reliance on job evaluation plans as a basis to fix relative wage rates and the implementation of the principle of equal pay for work of equal value. Forms of job evaluation have been used over long periods of time in some countries as aids to establish pay rates for jobs. Only relatively recently though, has there been sustained interest in the process as a means of applying the objective of the Convention. However, as is discussed later in this section, special attention must be paid to eliminating the sex bias in job evaluation techniques if they are to play a positive role in detecting and resolving pay discrimination.

144. Job evaluation is practised at various levels. Experience with the use of nation-wide job evaluation plans tends to be most prevalent in those countries where it is an essential part of the government's wage fixing policy. In the Eastern European planned economy countries, for example, job evaluation is applied as an integral part of the centralised wage-fixing system. As discussed in paragraph 62 above, a single nation-wide method of classification has been established by legislation in Algeria to permit all jobs to be related to each other for the purposes, inter alia, of applying the principle "equal work, equal pay". The widespread use of job evaluation in the Netherlands (Endnote 96) is largely due to the government having introduced a system of national job evaluation as part of its post-war reconstruction programme, which was only abandoned at the end of the 1950s. In other countries, job evaluation tends to be confined to particular sectors of industry. In both Canada and the United States, it has long been practised in the civil service sector and is prevalent in most large enterprises. Similarly, in the United Kingdom some form of evaluation is used by the majority of medium- and larger-sized enterprises. In the Federal Republic of Germany and in France, the use of job evaluation techniques is concentrated in large enterprises though in France, its use is somewhat limited by the constraints imposed by collective bargaining agreements. Job evaluation methods do not appear to have been particularly adaptable to traditional wage systems such as that prevalent in Japan where wages are usually based on the worker's individual characteristics, such as level of education, seniority and individual abilities. For example, production programmes in factories are not based on the individual worker but on a section or service. The Government of Japan has, however, stated, that there is a trend to move from a seniority wage system towards a wage-fixing system based on job content, which should theoretically promote the principle of equal remuneration for men and women by reducing the differences in earnings due to the shorter average length of women's service. (Endnote 97) In Sweden, where job evaluation methods are widely used, the various schemes are elaborated at the industry level and are thus related directly to the structure of collective bargaining. While there has been a very limited use of job evaluation techniques to date in developing countries, the interest in job evaluation methods has clearly been growing. In a number of African countries (Cameroon, Ethiopia, Nigeria and Zaire) job evaluation techniques have either been introduced, or are contemplated, for the public sector. In Ghana, there is movement towards a broader application of job evaluation techniques and principles. With the exception of the situation in the Philippines, the use of job evaluation in Asia seems inhibited by the type of traditional constraints hindering its use in Japan. There is, however, a growing use of job evaluation in Latin American countries, mainly Mexico and Chile where it is used commonly by multinational corporations.

(c) Limitations of job evaluation

145. From the point of view of promoting equal remuneration, several aspects of the methods generally used in job evaluation plans are considered problematic. Since job evaluation is an inherently subjective method in the final analysis, sex stereotyping can easily enter the process, resulting in an underevaluation of jobs held mainly by women. (Endnote 98) Factors and factor weights may be biased in that they do not give sufficient consideration to qualities regarded as essentially "feminine". Moreover, where job evaluation plans use market wage rates to establish the relative weights of factors, these weights will tend to reflect any historical discrimination that exists in the labour market. Another difficulty is that many organisations use different job evaluation plans for different categories of workers (e.g., white-collar, blue-collar, clerical, technical and professional employees) thereby restricting comparisons between jobs in those categories. (Endnote 99) As will be seen in paragraphs 148, et seq., below greater attention is being paid to overcoming such difficulties in the application of job evaluation. Certain other limitations, however, derive from the very nature of the method itself. Since job evaluation assumes that there are jobs whose individual content is definable and more or less fixed, there may be problems in introducing the method into some sectors which are moving towards making work organisation more flexible, both to avoid monotony and to be more readily adaptable to changes in production and technology. (Endnote 100) Furthermore, because job evaluation provides a basis for determining the rate for the job and not the amount actually earned by the worker, it may be said that the proclaimed equity concerns only part of the wage (Endnote 101) in many cases. In so far as any additional payments making up the individual worker's actual earnings are dependent on some appraisal of his performance or other factors unrelated to the evaluation of the job, the criteria used in these regards should also be chosen or re-examined in the light of the Convention, so as to eliminate any discrimination based on sex.

(d) Use of job evaluation in applying the principle of the Convention

146. Recent years have seen an increasing emphasis on the importance of job evaluation as a means of giving effect to the Convention. No doubt this was inevitable as governments, employers and workers better appreciated the extent to which job segregation and employment practices constitute obstacles to the application of the principle of equal pay for work of equal value. Faced with a persistent wage gap, a number of countries have begun to use formal job evaluation plans more systematically to examine and compare those jobs in which women predominate with jobs in which men predominate, in order to identify and correct instances of pay discrimination. For example, parties to instruments covered by the Equal Pay Act 1972 and individual employers in New Zealand were required to establish the classification (and the corresponding rate of remuneration) of the work performed by female workers in relation to the work performed by male workers by comparing the degrees of effort, skill and responsibility involved and the conditions under which the work was performed. In female-dominated occupations, they were required to calculate the "notional male rate", i.e. the rate which would be paid to a male employee with the same or similar skills, responsibility and service performing the work under the same or similar conditions with the same or similar degrees of effort. (Endnote 102) The Norwegian Employers' Confederation and the Confederation of Trade Unions in Norway have concluded a framework agreement regarding the systematic appraisal of jobs as the basis for wage fixing. Under this agreement, a wage-fixing system based on job appraisal may be introduced in individual undertakings or branches of industry. (Endnote 103) The Government of the United States has stated in its report that attempts have been made in some quarters to define the relative value of various classes of jobs to the employer in order to determine whether entire classes of jobs traditionally held by women have been undervalued and underpaid. While this concept -- "referred to as equal pay for work of equal value, equal pay for work of comparable value and comparable worth" -- has not been adopted by the federal government, the approach has been adopted by a number of state (Endnote 104) and local governments and the AFL-CIO and other trade union organisations. The city government of Los Angeles and the American Federation of State, County and Municipal Employees, a union composed of public employees, entered into a three-year employment contract in May 1985, which provides special raises of 10 to 15 per cent to 3,900 clerks and librarians, most of whom are women, so that their salaries will equal the salaries of maintenance workers, gardener, caretakers and others in male-dominated job classifications. The State Governments of New York and New Jersey have also taken action to address perceived inequities. The Government of New York plans to spend $16 million in 1986 and more than $16 million in 1987 for special pay increases for female state employees to help raise their salaries to those of men in jobs of comparable worth. The Government of New Jersey estimates that it will spend approximately $70 million a year to increase the salaries of jobs usually occupied by women. Also, in 1981, the city Government of San Jose in the State of California agreed to spend $1.5 million for pay equity adjustments of 5 to 15 per cent over two years for over 60 female-dominated job classifications and in 1984, the city Government of West Hollywood in the State of California approved an ordinance which requires equal pay for comparable jobs in city Government. Some examples are provided in the paragraphs below, of the way in which job evaluation methods have been used in the settlement of pay disputes. More generally, the role of job evaluation has been enhanced in those countries which have adopted legislation calling for equal remuneration for jobs found to be of equal value on the basis of an evaluation of the work involved. As indicated above, (Endnote 105) these provisions sometimes use the language of job evaluation (viz. skill, effort, responsibility and working conditions) in specifying the criteria for assessing the value of work.

147. The Committee has noted a number of cases where awards for equal pay have been made on the basis of job evaluation. The Canadian Human Rights Commission has, for example, approved settlements in disputes involving comparisons of different types of jobs, after evaluation found the jobs to be of equal value. (Endnote 106) Comparisons have thus been made between a predominantly female group of librarians with a predominantly male group of historical researchers; and between a female nursing director in a hospital and the hospital's other directors, all of whom were males. (Endnote 107) Similar cases are to be found elsewhere. In the first successful claim under the 1983 amendments to the Equal Pay Act (Endnote 108) in the United Kingdom, an industrial tribunal found the work of a female cook to be of equal value with that of three male shipyard tradesmen -- a painter, a joiner and a thermal engineer -- on the basis of an evaluation of the jobs carried out by an independent expert commissioned by the tribunal. (Endnote 109) Two further settlements in the United Kingdom illustrate how job evaluation has assisted in remedying pay inequities. In one case, an independent expert appointed by the industrial tribunal to analyse the jobs performed by female fishpackers and to compare them with that of a male labourer, found that 9 of 14 women were, in terms of the demands made on them, carrying out work of equal value to that of the male worker. However, the tribunal took a broader approach and ruled that because the other five women scored so closely to the male with whom they compared their work, the differences between them were not relevant and made no real material difference. Accordingly, all 14 women were considered to be doing work of equal value to that of the male labourer and were entitled to equal pay. (Endnote 110) The second case involved a 17 year-long dispute concerning the grades into which predominantly female sewing machinists had been placed under a job evaluation scheme. A claim in the matter under the Equal Pay (Amendment) Regulations 1983 was dismissed by an industrial tribunal which stated that it did not have reasonable grounds to determine whether the machinists' work was of equal value to a male worker's, because it had no evidence that the 1966 job evaluation scheme was discriminatory. Further industrial action, however, led to the appointment of an independent job evaluation panel which reprofiled the sewing machinists' job and, as a result, awarded it a higher grade than had been determined under the earlier scheme. In accounting for the differences between the original and updated evaluations, the independent panel pointed out that some aspects of the work had changed; and that there had been developments in the evaluation technique ("profiling") since its first applications. There is now a much greater awareness of the ways in which job factors can be interpreted in a discriminatory way. (Endnote 111)

148. Several court decisions have suggested that an employer who undertakes a job evaluation study voluntarily, must also remedy any pay discrimination disclosed by the study. It has been held in the United Kingdom that the requirements of the equal pay legislation were intended to "bite" at the moment when the evaluation study and exercise had made available a comparison which could show discrimination. (Endnote 112) Similarly, in the United States, an employer who fails to remedy pay differentials disclosed by job evaluation may face liability for intentional sex discrimination under Title VII of the Civil Rights Act. (Endnote 113) It is interesting to note that one US court also held an employer liable for intentional sex discrimination under Title VII, partly because it had failed to undertake a job evaluation of sex-segregated jobs prior to the trial. In that case, the court was also willing to address the conflicting claims of job evaluation experts retained by the defendant, a grocery wholesaler, and the plaintiffs, employees of an all-female grocery store department. (Endnote 114)

149. In 1985, the Equal Employment Opportunity Commission in the United States issued a decision (Endnote 115) which describes the evidence it believes proves a claim of sex-based wage discrimination under Title VII of the Civil Rights Act. The Commission held that claims of sex-based wage discrimination may be proved by (1) evidence of the discriminatory application of a wage policy or system or the discriminatory use of wage-setting techniques such as job evaluations or market surveys, (2) evidence of barriers to equal access to jobs, or (3) the preponderance of direct or circumstantial evidence that wages are intentionally depressed because of the sex of the occupants of the job. It also ruled that there is no statutory basis or case law support for the conclusion that evidence consisting solely of a comparison of the intrinsic worth or difficulty of one job with that of other jobs in the same organisation or community is sufficient to establish a violation of Title VII of the Civil Rights Act.

(e) Prospects

150. The more extensive use of job evaluation to apply the principle of the Convention has been accompanied by a greater concern among countries to eliminate subjective and discriminatory elements in the various methods. Thus, attention has been called to the need to ensure that the criteria for the appraisal of jobs do not under-value the skills normally required for jobs that are in practice performed by women. (Endnote 116) In comparing the work of men and women, care should therefore be taken to balance the various job components to ensure a fair and just evaluation. (Endnote 117) It has been pointed out in this connection that even though a very large set of compensable factors may be developed, many systems omit or ignore job content characteristics that are disproportionately found in the work women tend to carry out. These include for example, job stress features such as doing repetitive tasks over a long period of time and working around people who are sick and disabled with no hope of recovery; and skill features such as creating a filing or record-keeping system. In addition, evaluators may confuse the content and responsibilities of a paid job with stereotypic notions about the qualities they consider to be intrinsic to women (especially in jobs relating to child care) and hence do not regard them as job-related skills. (Endnote 118) The criteria used for the evaluation of jobs must also be explicit; if the criteria are capable of different interpretations, discrimination may enter the process. (Endnote 119) In some countries, a widening of the criteria used for comparing work has resulted in an upgrading of the jobs concerned. For example, in Hungary, a more objective appraisal of jobs has been facilitated by widening the criteria to include, among others, nerve strains which are more intense in numerous spheres of work where women are employed for the most part (weaving, spinning, shoe industries, etc.). These jobs were consequently classed in a higher wage category. (Endnote 120) As has been discussed above, discrimination may also enter the process if the weighting of factors is not equitable.

151. Information is sparse on the extent to which the introduction of job evaluation has brought about a reduction in the overall wage gap. From various indications on the impact it has had in particular sectors of employment, however, it appears that the application of evaluation schemes has considerable potential for reducing pay differentials between men and women. Apart from the examples already provided above, it may be noted that in Finland, a 50 per cent drop in the difference in wage rates for office employees in industry in 1974-75 was attributed to the adoption of a new wage determination system based on an objective description and classification of jobs, the reassessment of the respective weights given to the "qualities peculiar" to men and women and the account taken of the degree to which the work is exacting and difficult. (Endnote 121) Moreover, a study on the efficacy of job evaluation as a means of applying equal pay in the United Kingdom, concluded that where job evaluation was used for implementing equal pay, women were more likely to be graded and paid at an appropriate skill level. By contrast, where job evaluation was not used and even within a collective agreement, women were often graded and paid below their skill level in relation to men in the same pay structure. This was most common where organisations relied exclusively on industry agreements. (Endnote 122)

152. Despite the limitations of traditional job evaluation plans, it is evident that the process can do much to promote equal remuneration. By making the criteria of compensation explicit and by applying the criteria consistently, it is probable that pay differentials resulting from traditional stereotypes regarding the value of "women's work" will be reduced. In this regard, it should be stressed that the determination of criteria and their weightings are matters on which the co-operation between employers and workers is particularly important. If job evaluation is to make a positive contribution to resolving wage discrimination, there must also be a legal and administrative framework enabling aggrieved workers to claim equal pay on the basis of an assessed value of their jobs, together with a right to claim redress when job evaluation systems have been found to be discriminatory.

Section 4. Control of the legality of clauses in individual and collective agreements

(a) Registration and approval of collective agreements

153. In a number of countries, legislation provides for the registration and/or approval of collective agreements by the authorities (in general, the labour administration or labour courts), which thus may control the legality of their provisions and, in particular, the observance of the principle of equal remuneration. In Greece, according to the Government's report on the Convention for 1983-85, the control of the legality of collective agreements by the Ministry of Labour is provided for in Legislative Decree No. 73 of 25 September 1974 to bring back into force national collective agreements, repeal the right of intervention concerning agreements and supplement Act No. 3239 of 1955 on collective bargaining. (Endnote 123) According to the report, agreements have been sent back to the bargaining parties for adjustment when it was noted that they contained provisions contrary to public policy or mandatory law, such as the rules concerning equal remuneration. In Guatemala, according to the Government's report on the Convention for 1979-81, collective agreements are submitted to the Ministry of Labour and Social Affairs for registration which is authorised, unless they contain clauses prejudicing workers' rights; such clauses are null and void, and the Ministry must order the immediate compliance with minimum standards of labour legislation, including ratified ILO Conventions. In Guyana, according to the Government's report on the Convention for 1981-83, the Ministry of Manpower and Co-operatives vets all agreements before counter-signing them, so as to ensure that there are no breaches of the laws, Conventions and established industrial relations, customs and practices.

(b) Extending collective agreements

154. In certain countries, legislation enables the effects of a collective agreement, which at first bound only the employers and workers represented by the bargaining parties, to be extended to all workers and employers in a particular branch of activity and/or in a geographical region. This extension procedure is followed in a number of European countries (for example, Austria, Belgium, France, Federal Republic of Germany, Italy, Luxembourg, the Netherlands, Portugal and Switzerland). In Africa, it is possible in the French-speaking countries as well as in others, such as Ethiopia, Ghana and Sierra Leone. Legislation also provides for the extension of collective agreements in some Latin American countries (for instance, Argentina, Bolivia, Brazil, Ecuador, Mexico and Peru). The legislation empowering the authorities to give general binding force to collective agreements enables the authorities to control the legality of their provisions and, in particular, observance of the principle of equal remuneration as a condition for granting the extension. (Endnote 124) In some cases, the legislation also specifies that collective agreements capable of being extended shall contain provisions concerning the modes of applying the principle "equal pay for equal work". (Endnote 125) Elsewhere, agreements may not be rendered generally binding by virtue of equality legislation proscribing distinctions between men and women in relation to their conditions of employment. In the Netherlands, for example, the Collective Agreements Act of 1937 (Endnote 126) empowers the authorities to declare certain provisions of a collective agreement generally binding. It was as a consequence of the 1980 Equal Treatment Act (Endnote 127) however, that collective labour agreements distinguishing between men and women were no longer declared generally binding. (Endnote 128) Decisions to extend collective agreements may, in some countries, be a matter for consideration by tripartite bodies. In Cameroon, for example, the National Joint Collective Agreements and Wages Board (composed of an equal number of employers' and workers' representatives and presided over by the Minister in charge of employment and social insurance) is empowered, inter alia, to make any suggestions and recommendations in the matter of collective agreements, and especially as regards the conclusion, extension or application of such agreements; and to make any provisions that it is deemed advisable to introduce into the collective agreements. (Endnote 129) In such circumstances, it would be appropriate to suggest that consideration be givento including provisions concerning equal pay in collective agreements which are capable of extension.

155. In the absence of legislation empowering the government to enforce the principle of equal pay in respect of wage rates fixed by collective agreement, the extension procedure provides the State with a means of supervising the contents of collective agreements. Obviously, though, the degree to which the procedure is effective in eliminating discriminatory wage rates depends on the number of collective agreements which are in practice extended. Thus, even where the authorities refuse to extend the binding force of agreements which discriminate between men and women, other measures may be called for to bring about compliance with the principle in respect of those collective agreements which are not meant to receive binding force. In this respect, the Committee has pointed to the importance of measures to encourage the social partners to give full effect to the principle of the Convention. (Endnote 130)

(c) Control of legality by labour inspection

156. Paragraphs 103 to 106 above discuss the role of labour inspection in enforcing the principle of equal pay, the difficulties noted and the measures being taken by some governments to strengthen this means of supervision. The following paragraphs summarise briefly the duties and responsibilities conferred on the labour inspectorates by legislation, to supervise the observance of the principle in individual and collective agreements. In many countries where the provisions on equal pay are contained in the labour codes, inspectors are empowered to supervise the application of these provisions by virtue of the general powers vested in them to secure the implementation of all labour legislation. These powers include the right of access to undertakings, the inspection of documents and the power to give formal notices to employers -- either directly or through the competent administrative or judicial authorities -- to remedy deficiencies observed. In countries where special legislation concerning equal pay has been adopted, the powers and competence of labour inspectors are sometimes restated or expanded upon in the law, in terms specific to their task of securing the observance of the principle. In France, the labour and manpower inspectors, the agricultural labour law inspectors or, in certain cases, other inspectors with similar duties, are responsible for ensuring and, together with the police and other officials attached to the criminal courts, of reporting on the application of the principle of equal pay under the 1972 legislation. (Endnote 131) The implementing Decree of 27 March 1973 (Endnote 132) provides, inter alia, for the imposition of fines on employers who refuse to provide the inspectors with details of the various elements which go to make up remuneration in the undertaking and, in particular, the standards, categories, criteria and the bases for calculating remuneration. The equal pay legislation in India (Endnote 133) provides for the appointment of inspectors to investigate compliance with the provisions of the Act; and specifies the powers of those inspectors in respect of access to premises, examination of documents and taking evidence from persons (section 9). The Equal Pay Act of New Zealand (Endnote 134) sets out the powers of inspectors under the Act (right to enter any place of work, right to examine the records employers are required to keep by law, right to ask questions of any persons concerning any such records or concerning the employment of any person) and provides that inspectors shall have, in addition to any powers conferred by the Act, all those granted under the Industrial Conciliation and Arbitration Act, 1954.

157. The labour inspectorate is often empowered to supervise the application of the principle in respect of individual and collective agreements. In its 1985 general survey on labour inspection, (Endnote 135) the Committee noted that many countries have adopted measures to enable the labour inspectorate to enforce binding collective agreements and/or arbitration awards. (Endnote 136) However, in certain countries the inspection service is empowered to enforce only collective agreements that have been extended to other undertakings by government decision.

(d) Action through public contracts (contract compliance)

158. Guaranteeing equal remuneration in contracts awarded by the public authorities can be an extremely effective tool in ensuring respect for the principles contained in the Convention. Work executed under the terms of public contracts has been singled out by Recommendation No. 90 as an area for action, where appropriate, in the application of the principle of equal remuneration (Paragraph 2(c)). In addition, the Labour Clauses (Public Contracts) Convention, 1949 (No. 94) reinforces this means of application in appropriate cases for countries which have ratified it. (Endnote 137)

159. The means of enforcing equal remuneration guarantees in contracts awarded by the public authorities may include the making of contract awards contingent upon a pledge of non-discrimination; the mandatory inclusion of non-discrimination clauses in the contracts and subcontracts awarded; the review of the implementation of such contracts, with the possibility of requiring corrective measures in cases of non-compliance; the insistence on the contractor's development of an affirmative action plan; the suspension or cancellation of contracts in cases of non-compliance; the fining of contractors; the debarring of contractors found in violation from bidding on future contracts; and the publication of the names of violators.

160. To date, the most extensive experience in using federal contract compliance to enforce equal employment opportunity laws appears to have been accrued in the United States. Executive Order 11246 of 1965 (Endnote 138) requires that every non-exempt contract (Endnote 139) with the federal government contain clauses that impose upon contractors and subcontractors the obligations not to discriminate against employees or applicants because of race, colour, religion, sex or national origin, and to take affirmative action to ensure employment without regard to those factors. The Order also includes a standard contract clause obliging the contractor to comply with the provisions of the Executive Order and any rules, regulations or orders issued under it, to include an equal employment clause in every subcontract or purchase order, and to co-operate in reporting activities and investigations related to enforcement. (Endnote 140) The written affirmative action plan required of larger employers with federal contracts or subcontracts (Endnote 141) must include, inter alia, a detailed listing of specific steps to be taken to guarantee equal employment opportunity and a table of job classifications, setting out job titles, principal duties and rates of pay. (Endnote 142) In the event of the contractor's non-compliance with the non-discrimination clauses of the contract or with any of the rules, regulations or orders issued under the Executive Order, the contract may be cancelled, terminated or suspended in whole or in part, and the contractor may be declared ineligible for further contracts with the Federal Government. (Endnote 143) The Secretary of Labour, whose department is, together with the Office of Federal Contract Compliance Programs (OFCCP), in charge of the Order's enforcement, may in addition recommend that lawsuits be instituted by the Justice Department to compel compliance, may recommend action by the Equal Employment Opportunities Commission or the Justice Department under Title VII of the Civil Rights Act (Endnote 144) and may publish the names of non-complying contractors or trade unions. (Endnote 145) The OFCCP has established techniques for handling compliance reviews, as well as procedures for handling discrimination cases, including applicable standards of proof, back pay standards and time limitations. (Endnote 146)

161. In enforcing the Order, the OFCCP has placed primary emphasis on compliance reviews in which the contractor's overall employment programme is evaluated, rather than on encouraging individual complaints. (Endnote 147) The compliance review may include an on-site inspection, during which the compliance officer may examine company records, interview employees, check the accuracy of job descriptions, wage rates and so forth, and locate any clustering of minorities or women in lower-paying jobs. (Endnote 148)

162. In appropriate cases, the OFCCP and the Equal Employment Opportunity Commission (Endnote 149) have co-ordinated action in litigation involving instances of alleged discrimination under Executive Order 11246 and Title VII of the Civil Rights Act. (Endnote 150) The first example of this was the settlement agreement they reached, aided by the Justice Department, in litigation with the American Telephone and Telegraph Company and its operating companies in 1973. Under the agreement resolving that suit, the largest private employer in the United States at that time, agreed to pay about US$15 million to 13,000 women and 2,000 minority men who had been denied pay and promotion opportunities. Back pay was awarded to some women who had been paid less than men for substantially equal work, and agreement on a new promotion and pay policy was reached. (Endnote 151)

163. In Canada, the Federal Fair Wages Policy Order (Endnote 152) requires that a provision be inserted in all federal government construction and supply contracts prohibiting discrimination in employment by the contractor. A similar non-discrimination section appears in the Regulations under the Federal Fair Wages and Hours of Labour Act, (Endnote 153) which is applicable to every contract made with the Government of Canada through a contracting authority for the construction, modelling, repair or demolition of any work. Furthermore, the requirement in the Ontario Human Rights Code, 1981, to provide equal treatment with respect to employment, applies specifically to persons engaged in government contracts.

164. Under the Federal Canadian Human Rights Act (section 19), the Governor in Council is empowered to make regulations requiring compliance with the Act, including its equal pay provisions, from organisations operating under contracts or licences from the federal government, but such regulations have not yet been passed. A 1984 Royal Commission Report on Equality in Employment examined contract compliance as a method of implementing equality. (Endnote 154) It noted that contract compliance may be a difficult programme to monitor effectively; in 1980 the Canadian Government had contracts with between 25,000 and 30,000 companies, worth 6.5 billion Canadian dollars to the private sector and an addition 5.5 billion to Crown corporations. (Endnote 155) Ideally, the report pointed out, every business or corporation under federal, provincial and territorial jurisdictions would be subject to employment equity legislation, just as these businesses are now subject to anti-discrimination laws. In the absence of such legislation, however, contract compliance was deemed "the next best alternative as a method of implementing employment equity in federally and provincially regulated business that contract with the federal government". (Endnote 156) Accordingly, the Commission recommended that under those circumstances, the federal government should utilise legislatively-based contract compliance. (Endnote 157) Under contract compliance, the recommendations continued, "the federal government would purchase goods and services only from businesses that agree to implement employment equity". (Endnote 158) Those contracts could include, in addition to the requirement to implement employment equity, other clauses to accommodate local needs. It was recommended that the agency charged with enforcing employment equity also be used to enforce contract compliance. (Endnote 159)

165. Other governments have not reported on provisions similar to those just described. Legislation in many countries does, however, prescribe a fair wage clause in public contracts to ensure that the workers concerned receive wages which are not less favourable than those established for work of the same character by collective agreements, arbitration awards or national laws and regulations. The Committee has called the attention of certain governments (Endnote 160) to the possibility of including, for example, in the specifications of contracts entered into by a public authority for the carrying out of public works, manufacture or the transport of materials or supplies, and the carrying out or furnishing of services, a clause providing for the observance of the national equal pay provisions by the contracting undertaking. The Committee would again suggest to governments -- as it did in its 1975 general survey (paragraphs 85 and 175) that they devote particular attention to the most appropriate means to be adopted for effectively supervising observance of the principle in this area.

Section 5. Remedial action

(a) Right of individuals to bring a complaint

166. Individuals who allege discrimination in respect of remuneration may seek recourse through various means, depending on the legal and industrial relations system of the country concerned. Where the principle of equal remuneration is embodied in the labour code, women workers are usually entitled to seek redress through the machinery established to resolve labour disputes in general. Complaints may thus be made to a labour inspector who is often empowered to investigate and conciliate complaints. In the event settlement has not been reached, the legislation of some countries authorises the labour inspectorate to bring the matter before the courts (see paragraph 173 below). In most countries, individual workers may also initiate legal proceedings directly before the competent courts. For instance, the Labour Codes of the French-speaking African countries provide for individual disputes to be brought before the labour courts; (Endnote 161) elsewhere, claims for equal pay may be brought before the civil courts. (Endnote 162) Individual disputes regarding the application of equal pay provisions are settled, in some countries, by bodies composed of representatives of employers and workers. (Endnote 163) As has been discussed in paragraphs 107 to 118 above, a number of countries which have adopted legislation dealing specifically with equal pay -- and often equal treatment questions -- have established specialised bodies competent to receive complaints from individual workers concerning violations of those legal provisions.

(i) Burden of proof

167. Discrimination in remuneration is often difficult to prove, particularly when it is indirect and arises from discriminatory criteria or classification and evaluation systems. Employees may also face difficulties in substantiating allegations of discrimination because they lack access to the necessary records and information. For these reasons, a number of governments have taken legislative action to place the burden of proof on the employer in equal pay disputes. For example, the 1980 equality of treatment legislation in the Federal Republic of Germany reverses and places on the employer "the onus of proving that material reasons unrelated to a particular sex justify differential treatment", where a worker establishes "facts that afford grounds for assuming that discrimination has occurred on account of his sex". (Endnote 164) Similarly, in France, the employer bears the responsibility for justifying the inequality of remuneration at issue under the equal pay provisions introduced into the Labour Code in 1983. Under the legislation, the worker shall have the benefit of any doubt which remains after consideration of the various elements in the matter. (Endnote 165) The legislation of some countries sets out the particular circumstances in which discrimination is presumed to have occurred; in such cases, the employer bears the onus of proving that the different treatment is unrelated to the workers' sex. In Sweden, discrimination on the basis of sex is deemed to occur when an employer observes less favourable conditions of employment for a worker than those he observes for a worker of the opposite sex, if such workers perform work which 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 qualifications for the work or that they are not in any event related to the workers' sex. (Endnote 166) The Labour Relations Act of Zimbabwe also provides that a person shall be deemd to have discriminated if his act or omission causes or is likely to cause persons of one sex to be treated less 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 person concerned. (Endnote 167) Draft legislation concerning equality between women and men in Finland would also place on the employer the burden of proving that differential treatment regarding remuneration is due to reasons other than those related to sex. (Endnote 168)

168. In cases concerning the dismissal of workers who have exercised their rights to claim equal pay, the legislation of some countries provides that the employer bears the onus of proving that the making of the claim was not the sole or principal reason for the dismissal or other action to prejudice the employee's position. (Endnote 169)

(ii) Protection against reprisals

169. For an effective application of the principle of equal pay, there must be guarantees against dismissal or other forms of reprisal for women workers who complain to the competent authorities or initiate legal action to enforce their right. Women workers must also be made aware of the existence of measures to protect them against retaliatory action: particularly in times of high unemployment, there may be an inclination to tolerate discrimination rather than risk dismissal. Provisions designed to protect workers against victimisation are now contained in the legislation of many countries. The protection against dismissal following a complaint or action aimed at obtaining equal pay, is included in the equal pay or equal treatment legislation of all the member States of the European Economic Community. Article 5 of the EEC Equal Pay Directive of 10 February 1975 (Endnote 170) specifies that member States "shall take the necessary measures to protect employees against dismissal by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal pay". In some of these countries, employers who infringe the legislative provisions concerning dismissal in this area are obliged to pay compensation or fines (Belgium, Denmark, Ireland, Luxembourg, Portugal, and the United Kingdom). A right to reinstatement may also be available, but if the worker refuses to be re-employed, damages are to be paid. In France, a dismissal is null and void if it lacks real and serious grounds and is in fact a measure adopted by the employer as a consequence of the worker having brought a lawsuit. In these circumstances, the worker has a right to reinstatement and is considered as not having ceased to occupy the post. Compensation is to be paid to a worker who refuses to perform the contract of employment. (Endnote 171) Such unwarranted dismissals are also null and void in the Federal Republic of Germany, Italy and the Netherlands and may be declared null and void by a tribunal in Greece. Provisions designed to prohibit employer reprisals are also contained in the legislation of other countries: for example, section 94 of the 1984 Sex Discrimination Act of Australia provides, inter alia, for the imposition of fines on persons who subject or threaten to subject another person to any detriment for making or proposing to make a complaint under the Act. In Ghana, the 1969 Labour Regulations (Endnote 172) prohibit employers from discharging or otherwise discriminating against any person who has made a complaint or given evidence or assisted in any way in respect of the initiation or presentation of a complaint or other proceedings to secure the right to equal pay. The Labour Codes of Guatemala (Endnote 173) and Honduras (Endnote 174) contain similar provisions prohibiting reprisals against employees from exercising the rights granted to them by the Constitution, the Labour Code, or other labour or social welfare laws. According to the Labour Standards Law of Japan, (Endnote 175) employers shall not dismiss or discriminate against workers who have reported a breach of the law to the labour inspectorate. In New Zealand, the Equal Pay Act of 1972 (Endnote 176) specifies that an employer commits an offence if he dismisses any employee or alters any employee's position in the undertaking or business within 12 months of the employee making or causing a complaint to be made. An employer who retaliates against an employee for asserting rights unde the Equal Pay Act (Endnote 177) of the United States may be liable for "such legal or equitable relief as may be appropriate to effectuate the purposes" of the Act, including employment, reinstatement, promotion and back pay, and an additional equal amount in liquidated damages. (Endnote 178)

(iii) Financial assistance to claimants

170. The possibility of incurring a heavy financial burden is another factor likely to deter women from initiating legal action to redress grievances. Provision has accordingly been made in a number of countries for claimants to receive assistance in proceedings to secure their legal rights. For instance, in Australia, assistance in respect of expenses incurred in connection with an inquiry by the Human Rights Commission or with proceedings before the Federal Court may be given both to claimants and to persons who have committed, or are alleged to have committed, an unlawful act under the Sex Discrimination Act, 1984 (sections 83 and 84). Legal assistance to needy persons whose claim is not obviously unfounded is also available to persons who institute legal proceedings in respect of equal pay in Italy. (Endnote 179) In addition, the labour legislation in a number of countries specifies that proceedings for labour disputes in general shall be free of charge. For example, in Argentina, there is to be no charge to a worker or to his dependents for judicial or administrative proceedings connected with the application of the legislation concerning contracts of employment. Where it becomes clear from the evidence that a claim has been unjustifiably overstated, the costs are to be defrayed jointly by the plaintiff and the legal representative conducting the case. (Endnote 180) Proceedings in labour disputes are also to be free of charge in Mexico (Endnote 181) and in Senegal, legislation provides that proceedings in the labour courts shall be free of charge. (Endnote 182)

(b) Exercise by trade unions of right of complaint

171. As the Committee pointed out in its 1975 general survey on equal remuneration, (Endnote 183) it should be possible for proceedings to be set in motion other than by the filing of a complaint by an individual woman worker. The legislation of many countries in fact provides for trade union organisations to institute proceedings on equal pay on behalf of their members, whether the action is brought before a court or a specialised body. (Endnote 184)

172. In most cases, a trade union must be authorised to act on a worker's behalf. However, sometimes the consent of an alleged victim of discrimination need not necessarily be a precondition for the complaint being accepted by the competent body. (Endnote 185) In some countries, trade union organisations may take legal action without having received prior authorisation from the worker concerned. Workers' organisations in Belgium have capacity to bring proceedings based on decrees giving binding effect to collective decisions or agreements, on the application and performance of collective agreements and on the rights conferred on members of the organisation by collective employment agreements. The organisations are granted a completely independent power to defend the rights of their members who need not therefore authorise them to do so. (Endnote 186) In France, groups which are entitled to institute proceedings whose members are bound by a collective employment agreement may institute proceedings arising from the agreement in favour of their members without having to prove that they have been authorised to do so by the person concerned, provided he has been notified and has not stated his opposition. The person concerned may at any time intervene in the proceedings instituted by the group. In these circumstances, a trade union may, provided it establishes an interest, institute proceedings before any civil, criminal or administrative court to defend the professional interests of its members or the collective interests of the trade or profession. (Endnote 187)

(c) Ex officio

173. Legislation dealing with equal pay in some countries confers authority on the body responsible for the supervision or implementation of the principle to initiate proceedings on behalf of claimants. Some examples have been given, in paragraphs 112 and 113 above, of instances where specialised bodies are empowered to initiate legal action on behalf of aggrieved individuals. In certain countries where labour inspectors are empowered to supervise the application of equal pay provisions, they are also authorised to bring claims for the recovery of wages before the competent court. (Endnote 188)

(d) Effect of decision by responsible authority

174. The remedies available to women workers who have successfully brought an equal pay claim, generally include awards to adjust the woman's future remuneration to correspond with that of a man performing, as the case may be, the same or similar work or work of equal value. (As discussed in paragraphs 119 to 131 above, orders to nullify discriminatory provisions in legislation or employment regulations are also made by some courts.) An order of a competent court or administrative authority may also include an award for back pay, special compensation and even, in some cases, punitive damages. While specific provision is usually made in the legislation for payments of this kind, the relevant tribunal or specialised body may be allowed a wide discretion to determine the amount of compensation to be actually paid to a victim of discrimination. For example, the Canadian Human Rights Act, 1977, provides that a Human Rights Tribunal may, at the conclusion of its inquiry, make an order which includes any of the terms laid down in the Act (section 41), including an order that the respondent compensate the victim as the Tribunal "may consider proper, for any or all of the wages that the victim was deprived of and any expenses incurred by the victim as a result of the discriminatory practice" (section 41(2)(c)). (The Act also empowers a Tribunal to order that the respondent adopt a "special programme, plan or arrangement" in order to prevent the same or a similar practice from occurring in the future (section 41 (2)(a)).) The amount of compensation awarded to a successful claimant may, of course, be affected by legislative provisions limiting the period for which arrears of remuneration may be recovered. In some countries, the equal pay legislation specifies that the right of action in proceedings to recover arrears of remuneration is limited to two or three years; (Endnote 189) elsewhere, claimants are entitled to seek back pay from the date a charge was first filed (Endnote 190) or from the date of the introduction of the legislation. (Endnote 191) It should be noted that damages may also be awarded for non-cash benefits (such as working clothes or the use of a company car). (Endnote 192)

(i) Nullity of discriminatory provisions in individual and collective agreements

175. In many countries, provisions in individual or collective agreements which are contrary to the principle of equal pay are deemed null and void, according to legislation or jurisprudence. (Endnote 193) Moreover, the legislation of some of these countries further provides that the lower rate of remuneration prescribed in the contract or agreement shall be replaced automatically by the higher rate. (Endnote 194)

(ii) Class actions

176. An individual claim for equal pay results in the most sweeping and effective remedies if brought as a class action, (Endnote 195) that is, on behalf of an entire group of similarly situated women, which may include past and future employees. Use of this procedure in the area of discrimination in employment and occupation appears to have developed mainly in the United States. Actions may be maintained as class actions under Title VII of the Civil Rights Act, 1964, subject to Rule 23(a) of the Federal Rules of Civil Procedure which enables class action only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defences of the representative parties are typical of the claims or defences of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. In addition to the above four requirements, one of three more requirements under Rule 23(b) must be met: (1) separate actions would create a risk of inconsistent adjudications or adjudications which would substantially impair the ability of non-parties to protect their interests; (2) where injunctive relief is sought, the party opposing the class has acted or refused to act on grounds generally applicable to the class; (3) questions of law or fact common to the members of the class predominate over questions affecting only individual members, and class action is the superior method for fairly and efficiently adjudicating the controversy. (Endnote 196) Class actions are also permitted under the Equal Pay Act, 1963, but they are governed by the "opt-in" provision: an employee must specifically give consent in writing to become a party plaintiff. (Endnote 197)

177. While no provision is made under the Federal Canadian Human Rights Act for class actions as such, complaints filed jointly or separately by more than one individual or group may be dealt with together if the Commission is satisfied that the complaints involve substantially the same issues of fact and law (section 32(4)). In the province of Quebec, the Code of Civil Procedure (Endnote 198) which applies to the Quebec Charter of Human Rights and Freedoms (Endnote 199) provides for class actions. (Endnote 200) The Human Rights Commission Act, 1977, of New Zealand empowers the Commission to bring proceedings on behalf of a class of persons and to seek, on behalf of persons belonging to that class, any of the remedies provided for under the Act (section 38). (Endnote 201) On the basis of established jurisprudence, any interest group or special group in India can bring social action litigation in court seeking enforcement of the right of women to equal remuneration for work of equal value, which is a constitutional and legal right. According to the Sex Discrimination Act, 1984, of Australia, the Human Rights Commission may deal with complaints from "a person or persons included in a class of persons aggrieved by (an unlawful act) on behalf of the persons included in that class of persons" (section 50 (1)(c)) provided that the Commission is satisfied, inter alia, that the class is so numerous that joinder of all its members is impracticable; that there are questions of law or fact common to all members of the class; that the claims of the claimant are typical of the claims of the class; and that multiple complaints would be likely to produce varying determinations that could have incompatible or inconsistent results for the individual members of the class (section 70(2)). Even if these requirements have not been satisfied, the Commission may still decide that the justice of the case demands that the matter be dealt with, and a remedy provided for, by means of a representative complaint. Where the Commission has found a complaint substantiated it is not, however, empowered to make a declaration that the respondent pay damages by way of compensation to the complainant. (Endnote 202)

(e) Sanctions

178. Neither Convention No. 100 nor Recommendation No. 90 consider the question of imposing penalties on persons who breach equal remuneration provisions. Penalties are, however, prescribed in the laws of a large number of countries. (Endnote 203) Where no specific sanction is prescribed by the legislation incorporating equal pay provisions, penalties may still be provided for under other legislation, such as the penal code. (Endnote 204) Usually the penalty prescribed is in the form of a fine, though in a few countries, imprisonment may also be imposed under certain conditions. (Endnote 205) In countries where specialised machinery has been set up to enforce legislation dealing with equal pay and equal treatment in employment (discussed in paragraphs 107 to 118 above), provision is also often made for the imposition of penalties on persons who fail to co-operate with the agency concerned during its investigation of claims. (Endnote 206)

179. In its last general survey on the equal remuneration instruments, (Endnote 207) the Committee observed that effective application of the principle depends very largely on the existence of provisions imposing sufficiently deterrent sanctions, notably of a penal nature, for violations. The Committee would emphasise again on this occasion, the need for governments to review the adequacy of the penalties laid down in legislation; and particularly where progress in the implementation of the principle continues to be slow, to consider increasing the sanctions to a sufficiently high level to discourage offences.

Section 6. Other factors to facilitate the application of the Convention

180. Throughout the report, mention has been made of the fact that many difficulties encountered in realising implementation of the principle of equal pay are intimately linked to the general status of women and men in employment and in society. (Endnote 208) These broader considerations have been acknowledged, to some extent, in Paragraph 6 of the Recommendation which advocates that a number of measures should be taken to ensure that women workers have equal or equivalent facilities for vocational guidance, vocational training and placement and to encourage women to use them (Paragraph 6(a) and (b)), to provide welfare and social services which meet the needs of women workers, particularly those with family responsibilities and to finance such services from social security or industrial welfare funds financed by payments made in respect of workers without regard to sex (paragraph 6(c)) and to promote equality as regards access to occupations and posts (paragraph 6(d)). It is impossible to summarise in a few pages the diversity of issues involved in these areas. Instead, this section draws from the reports submitted by governments, together with the comments received from employers' and workers' organisations, some general conclusions about the developments and trends noted, with some examples of specific measures, under two headings of education and employment: welfare and social services.

(a) Education and employment

181. Along with the enactment of provisions to broaden the scope of their equal pay policies (considered in Chapter III), a number of countries have also taken legislative and other action to tackle simultaneously all the sources of wage inequality in the labour market. Such initiatives indicate a shift in emphasis since the Committee's last survey. Previously, it was considered that the implementation of equal remuneration would be facilitated if discriminatory employment practices for reasons of sex were prohibited in the areas of vocational training, recruitment and promotion. Measures to protect women against discrimination are certainly important but it is doubtful that these efforts alone have affected certain prevailing negative attitudes towards the employment of women, which are attributable in large part to indirect forms of discrimination both within and outside the labour market. With a greater understanding of the link between occupational segregation and the gap between men's and women's wages, equal employment policies have tended, more recently, to propose the introduction of positive measures to increase career options for women in non-traditional occupations, by encouraging changes in their pre-employment education and training and promoting their participation to levels and in areas of employment which were closed to them in the past. This section highlights some of these measures.

(i) Education in schools

182. Differential treatment of girls and boys at school has consequences for their future employment prospects. With this in view, a number of countries have included in their equality laws, provisions requiring teaching facilities at schools to be free of discrimination. In Iceland the law on the Equal Status and Equal Rights of Women and Men (No. 65 of 1985) specifies that schools and other educational institutions provide instruction on issues concerned with equality between women and men: and that educational aids and textbooks used in those institutions be designed so as not to discriminate against either of the sexes. The Act further provides that attempts be made to modify the traditional choice of employment and education among men and women (section 10). In Norway, according to the Act respecting equality between the sexes, (Endnote 209) teaching facilities used in schools and other educational establishments shall contribute to equality between the sexes (section 7).

183. The Government of Czechoslovakia has provided, in its report, a very detailed description of the education system of the country which makes no distinction between men and women. Among other things, provision is made for the material security of pupils training for occupations in apprenticeship branches and for other students. In addition to a monthly cash payment they receive food and lodging either free or against reimbursement and travelling and transfer allowances. (Endnote 210) The legislation also provides for special grants to be paid to student mothers and for students living alone who have sole responsibility for a child. (Endnote 211)

184. Other countries have also adopted measures to promote educational equality. In 1974, the United States Congress adopted the Women's Educational Equity Act which authorises federally funded grants for activities designed, inter alia, to aid research, development and educational activities to advance educational equity and to develop educational activities to increase opportunities for adult women, including continuing educational activities and programmes for underemployed and unemployed women. (Endnote 212)

(ii) Vocational training and guidance

185. A great many countries report that women enjoy the same facilities as men for vocational guidance and training. (Endnote 213) In addition, some countries have described the special programmes being undertaken to encourage women to enter non-traditional areas of employment. For example, in Ireland, the Training Council, known as An Chomhairle Oiliúna (AnCO) (Endnote 214) has a specific policy for women which focuses on their increased participation in training programmes, the integration of women into occupations traditionally held by men and the unique training needs of women who return to paid employment after a break. AnCO initiated a pilot programme in 1975 to integrate women into apprenticeship training for skilled trades (Endnote 215) and since 1981 has run a programme to train older women for semi-skilled engineering occupations. It also implemented in 1978 a special programme to involve more women in management training which, according to the Government's report on the Recommendation, is no longer needed due to the almost equal male/female representation in AnCO management courses.

186. In New Zealand, women as a group are still unrepresented in many forms of training, especially trade and technical training. (Endnote 216) Believing that traditional attitudes are responsible for the imbalance of men and women in training, the Vocational Training Council ran a public education programme in 1983 designed to make the community at large, including parents, employers, educators and women themselves, aware of the need for women to consider a wider range of training and employment than in the past. Following a successful pilot programme in 1983, the Department of Employment recently implemented a Positive Action Programme which aims to broaden the job horizons of women by encouraging their employment in non-traditional occupations. The activities include special training courses for women and counselling women who are registered as unemployed to encourage a broadening of their job horizons. In Ecuador, the percentage enrolment for women is much greater than for men in diversified technical courses (the last three years of secondary technical education) which, according to the Government, might be considered encouraging were it not for the fact that the majority of women enter upon subordinate careers in commerce and administration as well as other traditional female activities which means they are debarred from real participation in the social and economic development of the country. (Endnote 217)

(iii) Access to and promotion in employment

187. From the reports submitted by governments for the purpose of the present survey as well as those received regularly from member States which have ratified Convention No. 111, it appears that there have been considerable developments over the past decade to repeal provisions in legislation which prohibit the access of women to public and private sector employment. In these reports, many governments have also referred to the specific action being taken to encourage equality of opportunity and treatment for women in employment and occupation. Significant among measures of this kind, however, are those programmes designed to break down historic patterns of indirect discrimination (or "systemic" discrimination, as it is sometimes called) by requiring positive measures to be taken in regard to recruitment and promotional criteria. Essentially, these affirmative action programmes recognise that it is not sufficient merely to ensure equality of opportunity in respect of access and promotion, because people who have suffered discrimination in the past cannot be expected to compete on equal terms with those who have not been subject to the same disadvantages.

188. Legislation requiring employers to adopt active measures for the promotion of equality in employment has been adopted in a number of countries, notably those in the Nordic region. In Iceland, employers are required to work actively towards the goal of promoting a more equal status of the sexes within their firm or institution and to make an effort to prevent occupations from being divided into separate categories of work for women and men under section 9 of the law (No. 65 of 1985) on the Equal Status and Equal Rights of Women and Men. In Finland, the Government Bill for legislation concerning equality between women and men of May 1985 places a duty on public and private sector employers to promote equality by acting in such a way that both women and men apply for vacant jobs, promoting the equitable placement of women and men into different kinds of jobs and creating equal opportunities for them to advance in their careers and to develop working conditions suitable for both women and men. An employer shall fulfil his obligation according to his possibilities and available resources (section 6). The Act respecting equality between women and men at work (Endnote 218) in Sweden also requires employers to adopt an appropriate policy for the active promotion of equality at work. Having regard to his resources and the other circumstances of the case, the employer must ensure, inter alia, that the conditions of employment are applicable to both women and men, that applications for vacancies are received from both sexes and through training and other appropriate action, that women and men are evenly distributed in the different types of work and classes of workers. Where, at any workplace, women and men are not in general evenly distributed in a particular type of work or class of workers, the employer shall make a special effort to receive applications from members of the under-represented sex and endeavour to ensure that the proportion of workers of that sex is progressively increased (section 6). An employer failing to comply with the Act may be ordered to discharge his obligations and shall otherwise be liable to a penalty (section 9).

189. In 1984, the Government of Australia announced a number of proposals in its policy discussion paper on affirmative action for women, including the creation of a 12-month voluntary pilot programme involving the participation of 28 leading companies and three tertiary educational institutions to improve women's position in the workforce by ensuring that discriminatory practices or traditions are reviewed and removed. Particular emphasis was placed on improving the representation of women in positions of authority in government, business, trade unions and other organisations of authority in the community. A working party of ministers, employers, trade unions and representatives of higher educational institutions and women's organisations was also established to frame options for legislation on the basis of the pilot programme. (Endnote 219)

190. Referring to the programmes introduced to ensure equality of opportunity and treatment in employment, a few countries have reported on measures taken to prohibit discrimination in advertisements for vacancies and opportunities for promotion; and to developments in working arrangements (such as part-time work, flexible working hours, job-sharing, staggered working hours, etc.) which accommodate the distinctive needs of women workers with family responsibilities. For the purposes of the present survey, it need only be emphasised that these various initiatives are crucial if equality in employment is to be fully realised. As has been noted in paragraph 101 above, however, full consideration will be given to the issues which have a direct or indirect bearing on women's equal employment opportunities in the Committee's general survey on the 1958 instruments on discrimination in respect of employment and occupation, in 1988.

(b) Welfare and social services

(i) Maternity protection

191. Provisions relating to the protection of the health of pregnant women and nursing mothers, the payment of health benefits, the right to adequate paid leave, guarantees of re-entry at the same level of employment and measures to prohibit discrimination against pregnant women or mothers in the areas of hiring, promotion and dismissal are closely connected with the question of equal remuneration and equality of opportunity of employment. A primary cause of sex discrimination in employment relates to women's childbearing role, and the view of some employers and male colleagues that women are not valuable employees because they will become pregnant or adopt children and leave the workforce.

192. Legislation and practice in this area differ greatly between countries. The most extensive provisions, however, appear to be contained in the labour legislation of the socialist countries. In the USSR, for example, the legislation provides that pregnant women, nursing mothers and mothers with children under one year of age are transferred to lighter work on production of a medical certificate. (Endnote 220) So as to prevent a reduction in the remuneration of women because of their pregnancy, provision has been made for them to continue to receive, during this period, the average remuneration for their previous job, calculated on the basis of their earnings over the last six months before the transfer, without taking maternity leave into account. (Endnote 221) Since 1981, pre- and post-natal maternity leave (during which 100 per cent of the previous wage is paid) has been supplemented with partly paid leave to care for a child aged up to one year old, which a women may obtain if she wishes, and during which time she is paid a monthly allowance under state social insurance. State lump-sum benefits were also introduced in 1981, to be paid out of state social insurance funds, at the birth of the first, second and third child; in accordance with the legislation in force, women with three children are paid both a lump-sum and monthly benefit at the birth of the fourth and subsequent children. In addition, section 72 of the Fundamental Principles governing labour legislation, provides for additional nursing breaks with pay for working mothers, to be considered as time worked and to be paid at the average rate of remuneration.

(ii) Family responsibilities

193. Measures to alleviate the adverse effects of home and family responsibilities on a woman's commitment to full-time continuous employment have been intensified in some countries. As is known, the Workers with Family Responsibilities Convention (No. 156) and Recommendation (No. 165), which were adopted by the International Labour Conference in 1981, provide that men and women workers must be enabled to exercise their right to obtain or engage in employment without being subject to discrimination because of their family responsibilities and to the extent possible "without conflict between their employment and family responsibilities".

194. Legislation to prevent discrimination on the grounds of marital status and family responsibilities, coupled with programmes to develop child care and social service programmes for the aged, are some of the strategies considered necessary prerequisites for the full realisation of equality in employment, including equal pay for work of equal value. Some countries have referred to the measures taken in this regard, particularly as concerns childcare. The Labour Act of Venezuela (Endnote 222) provides that every establishment which employs more than 30 women (irrespective of their age and civil status) shall provide a crèche attached to but independent of the workplace, where women can nurse their infants under one year and leave them while at work (section 118). Similar provisions can also be found in the labour legislation of Argentina. (Endnote 223) In less specific terms, legislation in Japan provides that the State and local public authorities are to establish nursery institutions and infant care centres. (Endnote 224) In New Zealand, the Government has, since 1973, paid subsidies towards the cost of day care for pre-school children under the Social Security Act 1964. Apart from the protective measures and special treatment provided for pregnant women and nursing mothers (see paragraph 192 above) the Labour Code of the USSR provides that women with children under one year of age may be granted partly paid leave. Women may also be granted additional unpaid leave to care for a child aged under one-and-a-half years: any such additional unpaid leave shall count towards the woman's overall uninterrupted service and also towards her occupational seniority in any specialised branch but the period is not to count towards the period of service for calculating the annual leave entitlement for the following year. (Endnote 225) In Romania, women who have sick children under the age of three years are granted, on medical advice, paid leave to look after them, which shall not count as part of the annual leave. (Endnote 226) Furthermore, women with children under the age of six years, who have to look after them, may work half the normal working hours if no day nursery is available; and such half-time work is counted as full-time work in calculating service seniority. (Endnote 227)

195. As concerns the actual provision of child care facilities, the Government of the German Democratic Republic has stated in its report on the Recommendation, that, in 1983, care was provided in day nurseries for 61.1 per cent of children up to the age of three years; in kindergartens, for 91 per cent of children of pre-school age and in day care nurseries attached to schools, for 81.6 per cent of children in the first to fourth years of schooling. The Government of China has indicated in its report that the central and local governments as well as enterprises pay special attention to the development of canteen and child-care services so as to reduce the family responsibilities of women workers. According to the report on the Recommendation supplied by the Government of Barbados, public and private child care facilities exist to enable workers with young children to make full use of their employment opportunities, and the number of public day care nurseries will be increased as finances permit.

196. Measures to assist workers with family responsibilities incur costs. As will be recalled, the Recommendation suggests these facilities be financed from social security or industrial welfare funds financed by payments made in respect of workers without regard to sex. In this regard, the Portuguese Confederation of Industry has stressed that, given the current economic conditions in Portugal, the financing by enterprises of services for women workers with family responsibilities is totally out of the question. (Endnote 228) Finally, it is interesting to note that two tax rebates have been made available for child care costs in New Zealand. The Donations and School Fee Rebate and the Housekeeper Rebate are available for any form of child care costs.

(iii) Publicity, information and investigation

197. Reference has been made throughout the report to the various means adopted by governments, often in collaboration with employers' and workers' organisations, to promote the application of the Convention by carrying out public information programmes, seminars for employers' and workers' organisations and undertaking studies to investigate the causes of wage discrimination. For this reason, and also because much of what these functions involve is obvious, only a few brief comments are called for here.

198. The most important element in any educational programme undertaken to promote equal remuneration, or more generally, equality of opportunity and treatment in employment, is to ensure that employers and workers are well informed as to the requirements of the legislation and/or government policies in this area. The actual means by which this purpose can be achieved are diverse and may range from disseminating information through trade unions and women's organisations, (Endnote 229) to posting the legislation in every workplace, (Endnote 230) or to holding seminars for employers' and workers' organisations and conducting information and publicity campaigns. Many countries have also supplied copies of pamphlets which outline the main legislative requirements and the means of redress available to women workers. (Endnote 231)

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Legislation

See related national legislation from Natlex

Search text under country name.

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C094 Labour Clauses Public Contracts) Convention, 1949