Comments adopted by the CEACR: San Marino

Repetition

Article 1 of the Convention. Equal remuneration for work of equal value. In its previous comments, the Committee noted the Government’s indication that, although the principle of equal remuneration between men and women for work of equal value is not expressly provided for in Law No. 40 of 1981 on gender equality in the labour market, it can, nonetheless, be considered implicitly covered by this legislation in that the Law requires the adoption of common criteria for women and men under the job classification systems used to determine remuneration rates. Given that it remained unclear whether these common criteria would also be applied when comparing jobs of a different nature, the Committee asked the Government to: (i) clarify the coverge of the provision of Law No. 40 of 1981 concerning job classification systems; (ii) indicate any judicial or administrative decisions applying Law No. 40 of 1981 in line with the principle of the Convention; and (iii) provide information on the job classification methods used in accordance with the Law and on the manner in which it is ensured that the criteria followed are not intrinsically discriminatory and do not undervalue jobs traditionally performed by women. The Committee notes that in its report the Government indicates that Law No. 40 of 1981 must be read together with article 15 (equal pay) of Law No. 7 of 1961, which stipulates that women workers shall receive the same remuneration as men for the same work performed. The Government also indicates that, in both the private and public sectors, remuneration levels are determined on the basis of job classification systems that make no distinctions as to the gender of the worker. The Government adds that jobs traditionally considered as “feminine” can be performed also by men workers and the remuneration rates applied will be the same for both men and women. The Committee further notes the Government’s indication that there has been no judicial or administrative decision involving questions of principle relating to the application of the Convention. The Committee recalls that, due to historical attitudes and stereotypes regarding women’s aspirations, preferences and capabilities, certain jobs are held predominantly or exclusively by women (such as in caring professions) and others by men (such as in construction). Often “female jobs” are undervalued in comparison with work of equal value performed by men when determining wage rates. The Committee draws the Government’s attention to the fact that the concept of “work of equal value” is fundamental to tackling occupational sex segregation in the labour market, as it permits a broad scope of comparison, including, but going 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 presupposes the use of appropriate techniques for objective job evaluation to determine value, comparing factors such as skill, effort, responsibilities and working conditions. Comparing the relative value of jobs in occupations which may involve different types of skills, responsibilities or working conditions, but which are nevertheless of equal value overall, is essential in order to eliminate pay discrimination resulting from the failure to recognize the value of work performed by women and men free from gender bias (see 2012 General Survey on the fundamental Conventions, paragraphs 673–675). Considering that legal provisions that are narrower than the principle laid down in the Convention hinder progress in eradicating gender-based pay discrimination, the Committee urges the Government to amend the legislation so as to fully reflect the principle of equal remuneration between men and women for work of equal value, and to provide information on any developments in this respect. The Committee also requests the Government to provide information on the steps taken to ensure: (i) in cooperation with the social partners, that the provisions of collective agreements observe the principle of the Convention; and (ii) that objective job evaluation methods are used to measure and compare the relative value of different jobs for the purpose of determining remuneration rates in line with the principle of the Convention.

Enforcement. The Committee notes the Government’s indication that the Commission for Equal Opportunities has not undertaken activities related to the principle of the Convention. The Committee asks the Government to provide information on any relevant activities, including public awareness raising and capacity building for enforcement authorities and the social partners on the principle of equal remuneration for work of equal value, undertaken by the Commission for Equal Opportunities or other competent bodies.

Statistics. The Committee notes the information provided by the Government on minimum wages in various industries. It also notes the Government’s indication that no violations have been detected by the labour inspectors. The Committee again encourages the Government to gather and supply statistical information disaggregated by sex on remuneration levels of men and women in the various sectors and occupational categories. The Committee also asks the Government to provide information on any relevant violations detected by the labour inspection services and any other information that could help the Committee gain a general appreciation of the degree of application of the Convention in the country.

Repetition

Article 1(1)(a) of the Convention. Discrimination on the basis of race, colour and national extraction. In its previous comments, the Committee noted that, owing to recent immigration flows into the country, the number of non-nationals living and working in San Marino had increased, and it asked the Government to: (i) provide information, including statistical data disaggregated by sex, on the situation of migrant workers; and (ii) supply full information on the steps taken or envisaged to foster equality of opportunity and treatment in employment and occupation, irrespective of race, colour and national extraction or social origin, as well as on their impact. The Committee notes the statistical information on the number of migrant workers, disaggregated by sex and professional qualification, provided by the Government in its report. It also notes the Government’s indication that the adoption of new measures to promote equality of opportunity and treatment in employment and occupation, irrespective of race, colour and national extraction or social origin, was not deemed to be necessary because no issues in this respect had arisen. In this regard, the Committee notes from the fourth opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities that no case of racism or racial discrimination has been recorded, although isolated cases of latent prejudice towards foreigners triggered the adoption of legal measures and cultural activities to tackle racism and to enhance the level of tolerance and understanding among the population (ACFC/OP/IV(2015)007, 21 April 2016, paragraph 2). Recalling that no society is free from discrimination and that continuous action is required to address it, the Committee encourages the Government to continue to monitor the situation in employment and occupation of all men and women to ensure their equality of opportunity and treatment, irrespective of race, colour and national extraction or social origin, and to provide information on any measures envisaged or adopted as a result thereof, including any measures adopted in collaboration with employers’ and workers’ organizations.

Discrimination on the basis of sex. Recalling that Law No. 40 of 1981 provides for equality of opportunity between men and women in respect of employment and occupation, the Committee again asks the Government to supply information on the steps taken to implement this provision and the progress made in this regard.

Article 1(1)(b). Discrimination on the basis of disability. In its previous comments, the Committee made reference to the Law No. 141 of 1990 laying down the rights of disabled people, which has the objective, among others, of promoting the integration of disabled people in the labour market by means of quota systems, incentives for their recruitment and targeted professional training, and asked the Government to provide information on the steps taken to give effect to the provisions of this Law, including information on the number of disabled men and women who have benefited from them. The Committee notes the Government’s indication that Law No. 141 has been further strengthened by the Law No. 28 of 2015 that incorporates in the national legal framework the principles of the UN Convention on the Rights of Persons with Disabilities, 2007. It also notes the statistical information provided by the Government on the number of men and women with disabilities who have benefited from the measures aimed at promoting their access to employment. The Committee notes, in particular, that in 2016 51 persons with disabilities were able to access employment thanks to incentive measures, 17 of whom were women. The Government also states that, following the adoption of Law No. 189 of 2015, changes were made to the Law No. 71 of 1991 laying down measures to promote access to employment of persons with disabilities. The Committee notes in particular that Law No. 71 of 1991 now provides, at article 4bis, that in order to access public procurement, enterprises with more than 15 employees must count among their workforce at least one worker with disabilities. The Committee asks the Government to continue to provide information on the implementation of measures aimed at promoting equality of opportunity and treatment in employment and occupation of men and women with disabilities and their impact, including information on the number of disabled men and women who have benefited from them.

Article 3(a). Cooperation with employers’ and workers’ organizations. Recalling the important role of workers’ and employers’ organizations in promoting the acceptance and observance of national policies and plans, including of a national policy on equality of opportunity and treatment in respect of employment and occupation, the Committee asks the Government to provide information on any consultation undertaken, as well as on cooperation with employers’ and workers’ organizations, with a view to promoting non-discrimination and equality in employment and occupation in practice.

Enforcement. The Committee notes the Government’s indication that no judicial or administrative decision has been delivered involving questions of principle relating to the application of the Convention, nor have labour inspectors detected infractions concerning the principle of the Convention. The Committee recalls that, where no cases or complaints, or very few, are being lodged, this is likely to 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 lack of complaints or cases could also indicate that the system of recording violations is insufficiently developed (General Survey on the fundamental Conventions, 2012, paragraph 870). The Committee thus invites the Government to raise awareness of the relevant legislation among the general public, to enhance the capacity of the competent authorities, including judges, labour inspectors and other public officials, to identify and address cases of discrimination, and also to examine whether the applicable substantive and procedural provisions, in practice, allow claims to be lodged successfully. Please also continue to supply information on any judicial or administrative decisions involving the application of the principle of the Convention as well as on the number and type of infractions detected by labour inspection services and any remedies provided or sanctions imposed.

Statistical information. The Committee notes from the statistical information provided by the Government on the labour participation of men and women in the private and public sectors for the year 2015, that fewer women than men are found in high-level position across the various sectors and occupations The Committee asks the Government to continue to provide statistical information on the participation of men and women in the private and public sectors, according to the industry, occupational category and employment status, as well as information on their participation in high-level positions. Please also supply information on any measures taken or envisaged to promote women’s access to high-level positions.

Repetition

New legislation. The Committee notes the Government’s indication that Law No. 95 of 1997 on the stay and residence of foreign nationals was repealed and replaced by Law No. 118 of 2010, as amended by Law No. 118 of 2015. The Law lays down the conditions for the entry of foreign nationals in the country and for the issuance of stay and residence permits. The Committee notes, in particular, that one of the changes introduced by the new Law concerns the extension of the temporary and seasonal work permits for foreigners from 11 to 12 months, renewable up to three times.

Migration flows. In its previous comments, the Committee noted the information provided by the Government concerning the flows of temporary migrant workers entering the country mainly to work in the home-care sector and the hotel and tourism sectors, and asked the Government to continue to provide information in this regard. The Committee notes from the statistical information provided by the Government with its report that, as of 31 December 2015, there were 5,195 foreigners resident in the country, out of a total population of 33,005 individuals. Whereas 4,460 of the foreigners were Italians, the rest came, for the largest part, from Central and Eastern Europe, and more particularly, from Romania, Albania, Ukraine and Russian Federation. The Committee also notes that foreign nationals holding a residence permit include seasonal workers employed in the hotel, agriculture and industry sectors. The Committee requests the Government to continue to supply information, including statistical data disaggregated by sex and origin, on the situation of foreign nationals entering the labour market, and the sectors and occupations in which they are employed.

Article 8 of the Convention. Legal status in the case of loss of employment. In its previous comments, the Committee asked the Government to: (i) indicate the legal status of those seasonal migrant workers who lose their employment and who do not find new employment for the remainder of their work permit and/or permit of stay; and (ii) provide information on how the principle that the residence and/or work permits of workers whose situation is legal are not withdrawn systematically in the case of loss of employment, is applied to non-seasonal migrant workers. The Committee notes the Government’s indication that, under article 18 of Law No. 118 of 2010, the loss of employment does not entail the immediate withdrawal of a migrant workers’ residence permit, except in the event of resignation. In the case of loss of employment, migrant workers are given the possibility to register in a special placement list at the “Ufficio del Lavoro” (employment office), within ten days of losing their job, in order to look for a new job in the same sector. The Committee notes the Government’s indication that the residence permit is withdrawn only if the worker does not find a new job within the duration of the remainder of his or her permit, or when the migrant worker fails to register in the placement list. Concerning temporary and seasonal workers, the Committee notes that pursuant to article 18, paragraph 2, of Law No. 118 of 2010, in the case of loss of employment these workers are given three months to find a new job, after which their resident permit is withdrawn. The Committee further notes that under article 20, paragraph 5, of Decree No. 5 of 2016 setting out the implementing regulations of Law No. 118 of 2010, the registration in the special placement list is subject to the provision by the migrant worker of documentary evidence that she or he has adequate housing. In this regard, the Committee wishes to stress that Article 8(2) of the Convention provides that migrant workers who have lost their employment shall enjoy equality of treatment with nationals in respect of guarantees of security of employment, the provision of alternative employment, relief work and retraining. The Committee recalls that Article 8(2) is conceived, not as an end in itself but as a means of achieving the objective of paragraph 1 of this Article which is to facilitate the restoration of the previous position of the migrant worker, who has lost his or her employment. In addition, Paragraph 31 of the Migrant Workers Recommendation, 1975 (No. 151), provides that migrants who lose their employment should be allowed “sufficient time to find alternative employment at least for the time corresponding to that during which he may be entitled to employment benefit; the authorization of residence should be extended accordingly”. The Committee therefore asks the Government to provide information on the application, in practice, of article 18 of Law No. 118 of 2010, including information on any complaints concerning its application that have been lodged with the competent authorities and their results. Please also clarify the status of the migrant worker who has lost his or her employment and cannot fulfil the requirements for registration in the placement list because his or her housing was provided by the former employer. The Committee also requests the Government to indicate the measures taken to ensure that migrant workers who have lost their employment enjoy equal treatment with nationals in respect of guarantees of security of employment, the provision of alternative employment, relief work and training, in accordance with Article 8(2) of the Convention.

Articles 10 and 12. Implementing a national policy on equality. In its previous comments, the Committee noted the Government’s statement that there is no difference in treatment between national and migrant workers with respect to trade union and cultural rights, and the exercise of individual and collective freedoms. It also noted the information in the Government’s report concerning the social security and health coverage of migrant workers. The Committee recalled that not only does Article 10 of the Convention require the repeal of statutory provisions or administrative practices which are discriminatory, but also the adoption of proactive steps by the public authorities to promote equality of opportunity and treatment in practice between nationals and migrant workers lawfully in the country, including with respect to employment and occupation. It also recalled that the objective of the national policy, achieving equality of opportunity and treatment, may be implemented in stages under a coordinated programme of proactive measures, described in Article 12 of the Convention. The Committee notes that the Government reiterates its statement that there is no difference in treatment between national and migrant workers with respect to trade union and cultural rights, and the exercise of individual and collective freedoms. The Committee notes that article 10, paragraph 5, of Law No. 118 of 2010 recognizes that regularly admitted migrant workers enjoy equal treatment and equality of rights and obligations with nationals in respect of services and benefits provided by the Institute of Social Security. On the other hand, the Committee notes from the fifth report of the European Commission against Racism and Intolerance (ECRI) that female migrant workers from Central and Eastern Europe who are employed as private caregivers remain in a vulnerable position and that steps should be taken to ensure that these workers receive information on their rights and on how to obtain assistance in case of problems, as well as on the remedies provided by the law in case of discrimination (CRI(2018)1, 27 February 2018, paragraph 69 et seq.). Once again, the Committee asks the Government to provide information on the application in practice of its national policy aimed at promoting equality of opportunity and treatment between nationals and migrant workers lawfully in the country, and in particular with regard to employment and occupation, including information on any measures taken or envisaged in respect of migrant worker caregivers.

Repetition

Special measures to address the impact COVID-19. In its detailed report, the Government indicates that in the context of the Covid-19 pandemic, it has enacted Decree-Law No. 96 of 31 May 2020 to introduce remote work in the Public Administration, including in the sector of socio-educational services. A new draft law will also be presented by 31 December 2020 to regulate remote work in a comprehensive manner.

Article 2. Branches of economic activity and categories of workers. Previously, the committee noted that section 5 of Act No. 40 of 1981 excludes domestic workers from the coverage of the provisions concerning maternity and parental leave. It asked the Government to provide information on the manner in which the principle of the Convention applies to this category of workers. The Committee notes the Government’s indication in its report that work is in progress to enact legislation regulating “caregivers”, which would include domestic workers. Recalling that the Convention applies to all branches of economic activity and all categories of workers, the Committee asks the Government to provide information on the progress made in the adoption of a legislation covering caregivers, including domestic workers and, in the meantime, to indicate how it is ensured that this category of workers, mainly women, enjoy the protection of the Convention.

Article 4(b). Measures to promote effective equality of opportunity and treatment for workers with family responsibilities. The Committee recalls that Act No. 137 of 2003 has amended Act No. 111 of 1994 (Maternity Leave/Family Supports), to extend the period of leave to which female employees are entitled following the expiration of the compulsory maternity leave. Women workers can request a period of leave up to 16 months during the first 18 months of the child’s life. They are entitled to receive 30 per cent of their net daily remuneration during the first year while for the remaining six months they have the right to 20 per cent of their remuneration in case the child does not benefit from childcare services. Moreover, both female and male employees may reduce their working day by two hours for a period of ten months while continuing to receive full pay. The Government refers to Act No. 43 of 31 March 2014 that provides for parental leave in case of child illness, as well as maternity and paternity leave, and the possibility of part-time work in cases of adoption. According to the Government, in 2018: 229 workers, including 142 women and 87 men changed their terms of employment from full-time to part-time during the first three years of their child’s life in application of Act No. 112 of 1994, whereas, in 2019, the number reached 227 workers, with 170 women and 57 men. The Government also indicates that parental leave is used almost entirely by women, except in cases where traumatic events occur due to childbirth or the health condition of the mother. This is mainly due to cultural factors that tend to perceive the mother as the first caregiver and the father as the breadwinner. Noting that, even where policies allow sharing of parental leave, in practice mothers still take the majority of this period, the Committee encourages the Government to continue to take measures to promote men’s use of parental leave with a view to enhancing a more equitable distribution of family responsibilities between men and women. The Committee asks the Government to provide statistical information, disaggregated by sex, on the extent to which men and women workers make use of the leave entitlements under the relevant provisions of Act No. 137 of 2003 Maternity Leave/Family Supports, both in the public and private sectors.

Article 5. Promotion of community services. The Committee notes the Government’s indication that seven public and five private nurseries exist in the country. According to the Government, to date, these structures, considering the birth rate, satisfy the requests of families and workers with family responsibilities. The Committee takes due note of this information.

Article 6. Promotion of public understanding of the principle of the Convention. The Committee notes an absence of information on this point. The Committee requests once again the Government to indicate the measures taken to promote public understanding of the principle of equality of opportunity and treatment for men and women workers with family responsibilities and to raise awareness of the specific difficulties faced by these workers.

Article 7. Vocational guidance and training. In response to its request for information on the measures taken or envisaged to enable workers with family responsibilities to become and remain integrated in the labour force, as well as to re-enter the labour force after an absence due to those responsibilities, the Government reports that, in the private sector, 36 workers (3 males and 33 females), attended foreign language courses in 2018, and 93 workers (6 males and 87 females) in 2019. The Committee requests the Government: (i) to provide detailed information on the different type of training offered to men and women workers with family responsibilities (in particular those who are at a particular disadvantage when endeavouring to obtain and maintain a job); as well as (ii) to indicate the manner in which measures already implemented have enabled workers with family responsibilities to become and remain integrated in the labour force. Please provide statistical data disaggregated by sex on the number of workers with family responsibilities who have benefited from employment services and active labour market measures.

General observation. The Committee draws the attention of the Government to its general observation adopted in 2019, recalling the relevance, importance and practical usefulness of the principles laid down in the Convention, and its accompanying Recommendation (No. 165), whose aim is to ensure that all workers with family responsibilities – women as well as men – are not disadvantaged in relation to other workers and, in particular, that women with family responsibilities are not disadvantaged in comparison to men with family responsibilities. Recalling the ILO Centenary Declaration for the Future of Work’s aim to achieve gender equality at work through a transformative agenda and stressing the importance of the Convention in achieving this goal, the Committee called for member States, and employers’ and workers’ organizations, to strengthen efforts towards specific goals.