Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Repetition

The Committee notes the Government’s first report on the application of the Convention.

Article 1(b) of the Convention. Equal remuneration for men and women for work of equal value. Legislation. The Committee notes that section 38(1) of Law No. 4/2012 on Labour (Labour Law) provides that «all workers, without exception, are entitled to receive fair remuneration, which takes into account the quantity, nature and quality of the work rendered, and observing the principle of equal pay for work of equal value». It however notes that, section 2 of the Labour Law, excludes from its scope of application civil servants, members of the police and the armed forces as well as domestic workers, and limits its scope of application to formal employment relationships, thus excluding workers in the informal economy. In that regard, the Committee notes that (1) no provision ensuring equal remuneration between men and women for work of equal value is provided for in regulations applicable to members of the police and the armed forces, namely Decree-Law No. 9/2009 of 18 February on Organic Law of Timor-Leste’s National Police (PNTL), Law No. 3/2010 of 21 April on National Defense and Decree-Law No. 33/2020 of 2 September 2020 approving the new Statute for the Military of the FALINTIL - Defence Forces of Timor-Leste (F-FDTL); and that (2) while section 2(3) of the Labour Law which provides that «domestic work is regulated by special legislation» no such legislation has been adopted to date. It however notes that, as a result of a campaign undertaken by the Working Women’s Centre, which was created in 2011 to support and improve working conditions for domestic workers acting as a collecting voice, a draft Domestic Workers’ Bill has been elaborated and submitted to the National Parliament. As regards civil servants, the Committee notes that section 8 of Law No. 8/2004 approving the Statute of the Public Service provides that civil servants shall earn «the same salary for the same work». In that regard the Committee recalls that the concept of “work of equal value” includes, but goes beyond, equal remuneration for “equal”, “the same” or “similar” work, and also encompasses work that is of an entirely different nature, which is nevertheless of equal value. It also wishes to emphasize that the principle of the Convention applies to all workers, both nationals and non-nationals, in all sectors of activity, in the public and the private sectors, and in the formal and informal economy, although it acknowledges that for the latter application, in both law and practice, remains a challenge (see General survey on the fundamental Conventions, 2012, paragraphs 658,665, 673). The Committee asks the Government to provide information on any measures taken or envisaged to ensure that the principle of equal remuneration for men and women for work of equal value applies to all workers, in particular (i) civil servants, (ii) members of the police and the armed forces, (iii) domestic workers and informal economy workers. It also asks the Government to provide information on the application of section 38(1) of the Labour Law in practice, in particular on any decision or regulation defining or interpreting the principle of the Convention.

Article 2. Promotion of gender equality and women’s economic empowerment. The Committee notes that, in its 2018 report under the national-level review of implementation of the Beijing Declaration (Beijing +25 national report), the Government indicates that the Secretariat of State for Equality and Inclusion (SEII) has been working in partnership with non-governmental organizations and civil society groups in the development and implementation of programmes to encourage greater participation of women in the formal economy. The Government however acknowledges that: (1) traditional social norms and cultural values are still influencing men and women’s roles and (2) significant barriers to the attainment of gender equality and women’s economic empowerment persist, among which the low level of labour force participation rate for women and their concentration in the informal sector, in particular in rural areas, making women particularly vulnerable to extreme poverty (pp. 5, 17 and 20). In that regard, the Committee notes, from the 2020 Global Gender Gap Report of the World Economic Forum (WEF), that the labour force participation of women is estimated at 25.6 per cent compared to 53.6 per cent for men. It further notes that, in its 2018–2023 Strategic Plan, the Secretariat of State for Equality and Inclusion (SEII), which is responsible for gender equality issues and inclusion, identified as one of the country specific objectives to empower and promote effective participation of women in the economic development of Timor-Leste. The Committee asks the Government to provide information on the measures taken, in particular in the framework of the 2018-2023 Strategic Plan of the SEII: (i) to address gender stereotypes regarding women’s aspirations and roles in the family and society; and (ii) to enhance women’s access to formal jobs with career prospects and higher pay, in particular in rural areas. Noting that the ILO Decent Work Country Programme for 2016-2020 provides that a Labour Force Survey would be carried out with the technical support of the ILO in order to collect reliable sex-disaggregated employment data, the Committee asks the Government to provide any available statistical information on the earnings of men and women in all sectors and occupations of the economy.

Article 2(2). Determination of minimum wages. The Committee notes that (1) section 38(2) of the Labour Law provides that workers’ pay shall not be inferior to the statutory rate of pay or the rate of the respective categories defined in collective agreements; and (2) section 100 of the Labour Law provides that the tripartite National Labour Council shall propose the amount of the national minimum wage. It notes the Government’s statement that the minimum wage is determined by the National Labour Council on the basis of the principle of promotion of decent work and equal remuneration. The Committee notes the Government’s indication that the monthly minimum wage rate is currently set at USD115. As regards determination of minimum wage rates by collective agreements, the Committee notes that the ILO Decent Work Country Programme for 2016-2020 highlights the need to promote collective bargaining and provides, to this end, for a specific outcome of strengthening the professional and technical capacities of employers’ and workers’ organizations (outcome 3.2). The Committee asks the Government to provide information on: (i) the activities of the National Labour Council with regard to ensuring that the determination of the statutory minimum wage and wage-fixing methods used to that end are free from gender bias; (ii) any activities undertaken to raise the awareness of its tripartite members on the principle of the Convention; (iii) the number of collective agreements with provisions affirming the principle of the Convention which have been concluded, as well as, if any, relevant extracts of collective agreements; and (v) the percentage of women and men who are paid the minimum wage rates.

Article 3. Objective job evaluation. The Committee notes that section 6(5) of the Labour Law provides that «pay differentials do not constitute discrimination when they are based on objective criteria that may be applied to both men and women, such as, for example, merit, productivity, regular attendance and length of service considerations». It further notes that section 38(1) of the Labour Law provides that all workers, without exception are entitled to receive fair remuneration, which takes into account the quantity, nature and quality of the work rendered, observing the principle of equal pay for work of equal value. The Committee notes that, pursuant to section 39 of the Labour Law, (1) workers may receive fixed as well as variable remuneration, which would be paid to the worker in accordance with his or her «performance or productivity»; and (2) extraordinary benefits awarded by the employer are not considered as being part of remuneration. The Committee notes the Government’s statement that an initial discussion was held by the National Institute of Labour Development on the development of a framework regulation to determine remuneration on the basis of skills certification. The Committee recalls that effective implementation of the principle of the Convention requires the use of a job evaluation method in order to measure and compare the relative value of different jobs held by men and women, through an examination of the respective tasks involved, undertaken on the basis of entirely objective and non-discriminatory criteria. It further recalls the difference that exists between performance appraisal, which aims to evaluate the way in which a worker performs his or her duties, and objective job evaluation, which seeks to measure the relative value of jobs with varying content on the basis of the tasks to be accomplished. Objective job evaluation is concerned with evaluating the job, not the individual worker. While criteria such as quality and quantity of work may be used to determine the level of earnings, the use of only these criteria is likely to have the effect of impeding an objective evaluation of the work performed by men and women on the basis of a wider range of criteria which are free from gender bias, such as skills and qualifications, effort, responsibilities and working conditions (see 2012 General Survey, paragraphs 695–696). Finally, the Committee wishes to recall that Article 1(a) of the Convention states that, the term ‘remuneration’ includes the ordinary, basic or minimum wage or salary and ‘any additional emoluments whatsoever’ payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker's employment. The use of “any additional emoluments whatsoever” requires that all elements that a worker may receive for his or her work are taken into account in the comparison of remuneration. Such additional components are often of considerable value and need to be included in the calculation, otherwise much of what can be given a monetary value arising out of the job would not be captured (see the 2012 General Survey , paragraphs 686–687 and 690–691).  The Committee asks the Government to provide information on: (i) the application of sections 6(5) and 38(1) of the Labour Law in practice, by indicating the steps taken to promote, develop and implement practical approaches and methods for the objective evaluation of jobs based on criteria that are free from gender bias (such as qualifications and skills, effort, responsibilities and conditions of work); (ii) the manner in which it is ensured that the principle of the Convention is applied with respect to any variable remuneration or extraordinary benefit awarded by the employer, as provided for in section 39 of the Labour Law; and (iii) any progress made with regard to the development of a framework regulation to determine remuneration on the basis of skills certification.

Articles 2 and 3. Public service and members of the police and the armed forces. The Committee notes that section 66 of Law No. 8/2004 approving the Statute of the Public Service provides that salary shall be defined by the Government which also approves the organization of pay scales for the different careers. It further notes that section 42 of Decree-Law No. 9/2009 of 18 February on Organic Law of Timor-Leste’s National Police and section 58 of Law No 3/2010 on National Defense provide that pay scales for members of the police and the armed forces shall be regulated by specific regulations. Furthermore, section 34 of Decree-Law No. 33/2020 of 2 September 2020 approving the new Statute for the Military of the FALINTIL - Defense Forces of Timor-Leste provides that members of the military are entitled to receive remuneration depending on the form of service, position, length of service and tasks performed, under the terms set out in a specific diploma. The Committee asks the Government to provide information on the application of section 66 of Law No.8/2004, section 42 of Decree-Law No. 9/2009, section 58 of Law No 3/2010 and section 34 of Decree-Law No. 33/2020 in practice, including: (i) any post classifications and pay scales fixing minimum and maximum salary implemented in the public service, the police and the armed forces; (ii) any methods used for determining or revising post classifications and consequently pay scales, as well as (iii) any statistical information on the number of civil servants, and members of the police and the armed forces, disaggregated by sex, occupational category and position, and average level of remuneration for each category of posts.

Article 4. Cooperation with employers’ and workers’ organizations. The Committee notes that section 100 of the Labour Law provides that the tripartite National Council of Labour shall be consulted on draft polices and legislation on labour relations. It further notes the Government’s statement that regular meetings are held within the National Council of Labour. The Committee notes that the ILO Decent Work Country Programme sets as a specific outcome the strengthening of employers’ and workers’ organizations’ capacities to ensure effective engagement of tripartite constituents in social dialogue to apply labour regulations and international labour standards (outcome 3.3). The Committee asks the Government to provide information on any cooperation undertaken with employers’ and workers’ organizations for the purpose of giving effect to the provisions of the Convention, in particular in the framework of the National Council of Labour.

Awareness-raising and enforcement. The Committee notes the Government’s indication that regular workshops on dissemination of the Labour Law and the Convention were carried out for workers, employers and local authorities, focusing on the promotion of decent work and equal remuneration for men and women. It further notes the Government’s statement that there have been no significant cases being reported on unequal pay. Referring to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Committee recalls that, where no cases or complaints are being lodged, this may indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals. The Committee asks the Government: (i) to step up its efforts to raise public awareness on the provisions of the Convention, as well as on the procedures and remedies available, and to provide information on any activities undertaken to this end; and (ii) to provide information on any cases or complaints concerning unequal remuneration detected by or reported to labour inspectors, the Mediation and Conciliation Services, the Provedoria for Human Rights and Justice, the sucos and the courts or any other competent authorities, as well as any decision issued in this regard.