Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report contains no reply to its previous comments and hopes that in the next report complete information will be given about the questions raised in its previous direct request, which read as follows:

1. For some years, the Committee has asked the Government to indicate the manner in which the principle of equal remuneration for men and women workers for work of equal value is ensured in Guatemalan legislation or in practice. Article 102(c) of the Guatemalan Constitution provides for "equal wages for equal work performed under equivalent working conditions, and equal conditions of seniority and efficiency". Section 89 of the Labour Code provides that "equal wages shall be paid for equal work performed in equivalent posts, under the same conditions of efficiency and seniority within the same enterprise". The Government has indicated in previous reports that the principle of the Convention is applied in practice by minimum wage tables and in collective agreements governing working conditions. The Committee refers the Government to the language of the Convention, which calls for equal remuneration for men and women workers to be established "for work of equal value". The scope of the Convention reaches beyond a reference to the "same" or "similar" work, using instead the "value" of the work as the point of comparison. The principle of the Convention is intended to apply not only in cases where the same or similar work is performed in the same establishment, but also to discrimination which may arise out of the existence of occupational categories and jobs reserved for women. The Convention is also aimed at eliminating inequality of remuneration in female-dominated sectors, where jobs traditionally considered as "feminine" may be undervalued due to sex stereotyping (see General Survey on equal remuneration, ILO, 1986, paragraphs 14-23). The Committee therefore requests the Government to consider giving legal expression to the language of Article 1(a) of the Convention.

2. In its previous comments, the Committee asked the Government to provide information on the practical application of section 89 of the Labour Code, which provides, in the pertinent part: In complaints filed by female workers alleging salary discrimination on the basis of sex, the employer shall bear the burden of showing that the work performed by the complainant is of inferior quality and value. The Government is asked to indicate whether there are any regulations or guidelines indicating the manner in which the employer may satisfy the burden of proof imposed by section 89. The Committee notes that, in the absence of a system of objective job evaluation such as that contemplated in Article 3 of the Convention, the elements that the employer is required to show under section 89 could easily be interpreted in a subjective manner, thus lending themselves to possible discriminatory application and possibly reinforcing traditional notions discriminating against working women. The Committee asks the Government to indicate what methods, if any, have been adopted to avoid the discriminatory application of section 89 and to provide copies of any administrative or judicial decisions interpreting that section of the Labour Code.

3. The Government indicates that no complaints have been brought by women workers under section 89 of the Labour Code. The Committee asks the Government to provide information on the steps taken or contemplated to promote the application of the Convention, including the dissemination of information to the public regarding the right of men and women workers to equal remuneration, the posting of notices regarding equal remuneration legislation in the workplace, seminars, presentations and other initiatives designed to ensure that workers are aware of their rights under section 89.

4. The Government states that no complaints have been made to the labour inspectorate or to the labour and social welfare tribunals regarding the application of the Convention. The Government is requested to provide full information in its next report on the activities of the labour inspectorate in securing the application of the Convention, including information on the number of equal pay inspections conducted, the number of violations found, the action taken and the sanctions imposed.

5. The Committee notes that the Government’s report contains no data reflecting the average earnings of men and women workers in Guatemala. The Government is requested to provide, in its next report, the statistical information requested in the general observation on this Convention (for both the public and private sectors), in order to permit an evaluation of the progress made in the application of the Convention to date.