Chapter VI. Conclusions

244. Thirty-five years after its adoption by the Conference in 1951, the Equal Remuneration Convention (No. 100) regularly continues to receive new ratifications by member States. Since the previous general survey, 24 new ratifications have been registered both from developing countries which have recently gained their independence and from industrialised countries, taking the total number of ratifications to 107. The Convention is thus one of the ILO instruments that has received the greatest adherence, with the above total placing it among the five Conventions with the greatest number of ratifications. This high number of ratifications indicates the almost universal acceptance of the principle of equal remuneration without discrimination based on sex. Ratifications come from all regions of the world, from developing and industrialised countries, countries with a planned economy and those with a market economy, countries where wages are fixed by statutory instrument and those where they are fixed through collective bargaining, as well as mixed economy countries with various combinations of these wage-fixing systems.

245. Nevertheless, nearly one-third of the member States of the ILO have not yet ratified the Convention. In this connection, it may be hoped that the Forward-Looking Strategies for the Advancement of Women, adopted by the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace (Nairobi, 15 to 26 July 1965), and Resolution 40/108 of 13 December 1985 adopted by the General Assembly of the United Nations, will induce member States which have not yet done so to ratify the Convention and to do so with the firm intention of making its principle a reality in shaping social conditions. Paragraph 72 of the Forward-Looking Strategies of actions indeed recommends that special measures be taken in particular to encourage ratification of the Equal Remuneration Convention.

246. That the principle written into the Convention has been accepted by countries with such a diversity of economic and social conditions attests to the flexibility of the standards laid down in 1951. The Committee recalls the approach adopted with regard to promotional Conventions which, rather than laying down rigid standards which a State is obliged to apply on ratification, set objectives to be pursued by a continuing programme of action. (Endnote 1) As indicated in this survey, there is an obligation to encourage or to ensure observance of the principle of equal remuneration according to whether or not the authorities are in a position to control, either directly or indirectly, the fixing of wage rates without discrimination based on sex. The aim is defined: the application to all workers of the principle of equal remuneration for men and women for work of equal value, but countries are to choose the means of achieving that objective.

247. It is therefore particularly interesting to note that the trend to make provision by legal enactment for the application of the principle has continued and spread over the last decade. While the Convention requires the principle of equal remuneration to be observed by the national authorities in their field of competence, including in legislation, there is in fact no requirement for it to be written into national law with a view to ensuring its general application. This is, however, called for by the Recommendation "where appropriate in the light of the methods in operation for the determination of rates of remuneration". Previously, the Committee had noted that the avoidance of interference by the public authorities in wage fixing in the private sector was a main obstacle to ratification for certain countries. It now appears to be accepted in most countries that the public authorities must take a more active part in the implementation of the principle; experience has shown that implementation remains only partial when it is sought solely through encouragement and general recommendations to the parties concerned without precise methods and objectives being laid down for the purpose. Thus more and more governments have considered it necessary to undertake to ensure the strict application of the principle, generally by adopting legislation. When the principle is made the subject of national legislation, it is frequently accompanied by the establishment of machinery intended to ensure its application, which assists its observance by organisations of employers and workers and by other appropriate bodies. Certainly, the absence of discrimination based on sex in the fixing of rates of remuneration, depends upon the introduction of formal regulations and statutory provisions, but it also depends on the practical effect given to them. Employers' and workers' organisations have a primary responsibility in ensuring the implementation of the principle of equal pay for work of equal value. It is they who have the most itimate knowledge of the specific issues to be addressed in applying the principle within the context of particular enterprises and industries. Measures they may take in this regard encompass co-operating with labour inspection services and other official bodies, using grievance procedures to resolve equal pay disputes and including the principle in collective agreements.

248. The Committee noted in its General Observation of 1984 that, in studying the law and practice of States which had ratified the Convention, it had been materially assisted by the detailed reports furnished by a number of governments. Indeed these reports illustrate clearly the various forms that pay discrimination in violation of the Convention may take and, consequently, they contribute to determining more appropriate and more explicit means of preventing and remedying the problems. These reports also illustrate that, while there is a single goal, the means of achieving it are many and varied. Furthermore, the Committee stressed the importance of the comments of employers' and workers' organisations in identifying the difficulties encountered in giving practical effect to the principle. In its 1975 general survey (paragraph 166), the Committee had already indicated that an initial difficulty in devising methods to give effect to the principle of equal remuneration arose from a lack of knowledge of the true situation because inequalities in remuneration, in all countries, are nearly always poorly researched and identified statistically. In addition, in cases where inequalities of remuneration are noted between men and women, information regarding the nature of these inequalities is either insufficient or totally lacking. The available data generally refer to average net earnings and take into account, without however precisely distinguishing the effect they have on the inequalities noted, such factors as working hours, length of service, skills and the occupational structure of the workforce. Such data do not in themselves make it possible to indicate the size, scope and nature of inequalities, nor to assess the impact of measures taken to ensure the application of the principle of equal remuneration for work of equal value. Nonetheless, even in those circumstances, they may be able to show the concrete existence of an inequality and thus provide the basis for assumptions about the nature of the inequalities,to be verified by further research work. Studies of this kind have in fact been undertaken in many countries by governments, by workers' organisations or, more frequently, by bodies set up to ensure the application of the principle, and they have made it possible to identify for each branch of activity and geographic sector, the respective importance of factors influencing equal remuneration. Even though the scope of such surveys may often be restricted to a given industrial or geographic sector, they have nevertheless confirmed that equal remuneration was only one element of a larger problem. Consequently, action to remedy wage inequality must also be taken in a broader context.

249. In many countries the measures taken to apply the principle are integrated into a gamut of measures intended to ensure equality of opportunity and treatment for workers of both sexes and constitute part of a complex structure that is being built upon progressively. Better still the measures can form one of the foundations of the structure, since the effective realisation of the principle leads to consideration of the factors causing inequality and their interaction. For these reasons, a number of countries, which were first to adopt specific legislation respecting equal remuneration, have subsequently enacted legislation of wider scope respecting the equal status of men and women.

250. Many difficulties encountered in achieving equal remuneration are closely linked to the general status of women and men in employment and society. The Equal Remuneration Recommendation (Paragraph 6) traces the outline of a policy intended to ensure the application of the principle by stressing its links with equality of opportunity and treatment in the fields of occupational training and in access to employment and occupation and to certain social services. In paragraph 38 of its General Report of 1980, the Committee noted that the law and practice in a growing number of countries tended to recognise that the objective of the elimination of discrimination between male and female workers with regard to remuneration for equal work "cannot be reached in a satisfactory way unless national policy also aims at eliminating discrimination on the basis of sex in respect of access to the various levels of employment, as provided by Convention No. 111". In 1985, the International Labour Conference adopted a resolution (Endnote 2) concerning equality of opportunity and treatment between male and female workers with regard to employment, stressing that the implementation of the principle should take place within the broader framework of the equality of opportunity and treatment of male and female workers, of which one of the obstacles is the family responsibilities which more frequently lie upon women. Consequently, all necessary measures should be taken to ratify the Workers with Family Responsibilities Convention, 1981 (No. 156), and to implement its provisions and those of the corresponding Recommendation, with regard to the measures required, particularly concerning the conditions and methods of employment of workers.

251. A comparison of the ratifications of the three Conventions confirms the desire of governments to consider the question of equal remuneration in a broad perspective. The seven States (Endnote 3) which up to the present time have ratified Convention No. 156, which came into force in 1983, have all ratified Convention No. 111 and Convention No. 100. Of the 107 States which have ratified Convention No. 100, only 12 (Endnote 4) have not ratified Convention No. 111, the scope of which is not restricted to the equality of opportunity and treatment between men and women. Finally, 12 States out of the 107 which have ratified Convention No. 111 have not ratified Convention No. 100; while several of these States do not envisage ratifying this Convention, even though its principle is applied in their national legislation, one country (Endnote 5) states in its reports due under article 19 of the ILO Constitution that it envisages ratifying Convention No. 100 in the near future.

252. The Committee considers that this comprehensive approach is of particular importance for the application of the Convention: equal evaluation of work and equal rights to all the components of remuneration cannot be achieved in a general context of inequality. Experience shows that the bona fide application of the provisions of the Convention alone would not be sufficient to ensure equal remuneration as long as conditions remained unequal in all other respects. To overcome the obstacles faced in applying the Convention, measures must be taken under other Conventions concerning equality of opportunity and treatment in employment and occupation and for workers with family responsibilities.

253. Viewing the principle of equal remuneration in a broader context (accompanied or not by the establishment of machinery to ensure application of the principles) may not have eliminated difficulties, even though it has contributed to identifying them and consequently to making it possible to resolve them. This confirms a paradoxical observation made by the Committee over the years in supervising the application of the Convention: often, a relative scarcity of legal instruments for the application of the principle, corresponds to a situation in which its implementation in practice is not considered to call for more rigorous action; once such action gets under way, however, and the further legal tools for implementing the principle are developed, the more the existence of problems in practice may be brought to the surface, thus initiating further progress. The application of the principle therefore occurs in successive stages, with each step giving rise to the discovery of new difficulties or problems and consequently leading to the adoption of new remedial provisions to solve them. In this sense, the resolve to give effect to the Convention permits the perception from a different angle, of further fields of discrimination which hitherto may have been difficult to see. It is therefore hard to accept statements suggesting that the application of the Convention has not given rise to difficulties or that full effect is given to the Convention, without further details being provided. By its nature, by the way in which it develops, and as a result of the equivocal character of discrimination with regard to remuneration, the application of the principle will necessarily unearth difficulties.

254. Although the reports submitted by governments show that the principle of equal remuneration is generally accepted as a matter of public policy, whether or not the States concerned have ratified the Convention, there are still a number of hesitations and shortcomings in the implementation of the principle. In the first place, the diversity of definitions used in national legislation for comparing work, as previously noted by the Committee, remains. The concepts employed often still refer to "the same work" undertaken in the same workplace or in identical conditions, to "work that is substantially identical", to "similar work" or more generally to equal work without the conditions of this equality being defined. In many countries, it has been found that these definitions can lead to narrow and restrictive interpretations by the courts. For this reason, a number of countries have amended their legislation to enshrine the formula of "work of equal value". This phrase, which is the one to be found in Article 2(1) of the Convention, appears best suited to achieve the objective of the removal of discrimination.

255. The reference to "work of equal value" inevitably broadens the field of comparison since jobs of a different nature have to be compared in terms of equal value. To compare the value of different jobs, it is important that there exist methods and procedures of easy use and ready access, capable of ensuring that the criterion of sex is not directly or indirectly taken into account in the comparison. The Committee notes with satisfaction this tendency to refer in legislative provisions to criteria for comparing jobs or, more comprehensively, to methods for the objective evaluation of jobs in order to ensure the fixing of wage rates without discrimination on the basis of sex. However, it is clearly important that the technical process of evaluation must itself be carefully examined in order to eliminate elements of discrimination related to sex which may be indirectly introduced if the points selected for comparison are not themselves free of sexual discrimination, e.g. height, strength. Particular care has to be taken in ensuring that adequate comparisons are available. If the net is cast too widely, there will be understandable resistance but the differences in wages (resulting probably from traditional stereotypes with regard to the value of "women's work") have been effectively reduced in a certain number of countries following the adoption or revision of legislation on equality of remuneration or treatment which has addressed the problem of sex discrimination in all areas, including job evaluation.

256. Particular difficulties for job evaluation are experienced in areas where men and women are in practice segregated into different occupations, industries and specific jobs within enterprises. This is the result of strongly entrenched historical and social attitudes. For the most part, the jobs in which women are predominantly employed tend to pay less than those held primarily by men. By adopting non-discriminatory evaluation criteria and applying them in a uniform manner, differences in wages resulting from traditional stereotypes with regard to the value of "women's work" are likely to also be reduced. In these cases, it is essential to ensure equal remuneration in an industry employing mostly women by having reference to a basis of comparison outside the limits of the establishment or enterprise concerned. The fact that the jobs in question may be done by few men, amongst many women, by no means indicates that the remuneration is, viewed objectively, without discrimination.

257. It appears from the review that access to occupations and posts, which is dealt with in Paragraph 6(d) of the Recommendation, is of central importance. As discrimination is eliminated between jobs, it becomes necessary to ensure that a woman has a fair opportunity to progress, if her skill and preferences so merit, to higher level jobs. Here, historic patterns may be difficult to change and an affirmative action programme may be necessary to achieve progress. Failure to achieve this will, as time passes, become obvious, and will lead to justifiable dissatisfaction. While active measures for the promotion of equality will assist some women to diversify into jobs traditionally held by men, these programmes may come too late for those women who have already acquired years of training and experience in jobs customarily held by women. Many women may also go on preferring to work in areas which have been dominated by women and which have been undervalued and underpaid.

258. It is clear from the survey that the application of the Convention is greatly enhanced by effective labour inspection. Most governments have stated that labour inspectorates, organised in various ways, are responsible for seeing to the observance of standards respecting equal remuneration. It appears clearly that the role played by labour inspectorates in ensuring compliance with the Convention is fairly limited, when comparing the number of interventions made by labour inspectors in the field of equal remuneration with interventions in other fields. The lack of resources noted by the Committee in its general survey of 1985 on labour inspection explains, to a certain extent, the modest role played in practice by inspectorates. A number of initiatives have been taken or are envisaged in order to strengthen their role: training inspectors with regard to questions concerning equal remuneration, recruiting specialised staff which includes women inspectors, and increasing the participation of workers' representatives in the inspection process. Another type of measure involves promoting the co-ordination between specialised agencies dealing with questions of equality of treatment and the labour inspection services. In some countries, the labour inspection service may -- or in other cases, must -- refer cases of discrimination to such agencies. In view of the available information, which indicates modest results, it is impossible to assess the effect of the recommended measures. The solution would appear to lie rather in a combination of the measures mentioned above with others intended to remedy the general inadequacies of labour inspection. The Committee considers, however, that wherever there are specialised agencies dealing with questions concerning equality of treatment, methods of co-ordination between these agencies and labour inspectorates should be studied and put into practice. Indeed, it appears indispensable to ensure co-ordination between such agencies acting at national or regional level and labour inspectorates which may take action within the enterprise itself.

259. Given the multiple causes of inequality in remuneration between men and women workers for work of equal value, effective results may be achieved by specially constituted bodies with powers broad enough to fulfil all the functions necessary. Thus a number of countries have created special agencies or bodies to deal with discrimination issues generally, including the task of ensuring observance of the principle of equal remuneration for work of equal value. The functions of these bodies reflect the panoply of strategies which are needed to combat discrimination: educational campaigns, especially for employers and workers, promotional work, co-ordination of the activities of government agencies in relation to equality questions, examination of legislative and regulatory drafts, handling complaints of discrimination, and other measures adapted to the national situation. In addition, the last decade has witnessed the proliferation of bodies with a consultative and advisory role on matters of relevance to the application of the principle.

260. A way of supporting the functioning of these specialised bodies is to organise the participation of the organisations of employers and workers in their activities, on a tripartite basis. A number of governments have instituted such participation and others have reported that promotional activities are often undertaken in collaboration with the industrial organisations. Some governments have initiated such co-operation on the occasion of an in-depth examination of collective agreements in force, undertaken with the organisations of employers and workers to detect indirect forms of discrimination that may exist therein. The reasons which led to the establishment of such specialised bodies would also indicate that the employers' and workers' organisations should be regularly associated with all or some of the activities in ways that are adapted to the national situation. In this connection, the Committee notes with interest the efforts made by some governments for the representatives of the staff of enterprises to be associated with the work of the specialised bodies or to have easy access to them.

261. One of the most effective and practical methods of ensuring that the objectives of the Convention are achieved is the elimination of discrimination in collective agreements. Although the government has an overall responsibility, the onus of ensuring this lies primarily with the employers and trade unions who strike the bargain. It is essential that both the social partners are fully committed to the objectives of the Convention and ensure as far as possible and as speedily as they can that discrimination is removed from their agreements. A great deal depends upon their determination on these matters, especially when the economic climate is adverse and there is a temptation to give priority to other issues.

262. Finally, on a more general note, the Committee considers that the Convention (No. 100) and the Recommendation (No. 90) concerning equal remuneration, 1951, have played and continue to play an essential role in the promotion of equality. By giving concrete expression to a principle enshrined in the ILO Constitution since 1919, they have first of all been the basis for an undeniably just claim. They have thus contributed to a greater acceptance of the principle that there must be no discrimination between women and men in remuneration for work of equal value. Although a great deal of progress has been made, it is by no means the case that discrimination has been eliminated or that changes have been permanently established. Social and economic factors such as the world recession, the move to informal sectors and to part-time employment can all lead to renewed problems. These pressures have to be resisted. Last but not least, by raising questions about the application of the principle of equal remuneration, the instruments have highlighted and still continue to bring to light the many facets of discrimination; through the answers found, they have contributed to spreading awareness and promoting the acceptance of the principle of equality between women and men in its entirety.

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Legislation

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Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C111 Discrimination (Employment and Occupation) Convention, 1958
Conventions: C156 Workers with Family Responsibilities Convention, 1981