Observación (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

1. The Committee notes the communication from the Single Confederation of Workers (CUT) which not only refers to the application of the Convention but also indicates that by 15 August 2007 the CUT, which is the most representative organization, had not received a copy of the Government’s report. CUT was therefore sending its comments without having seen the report and reserved the right to enlarge on them upon receiving it. The Committee notes that in its report sent on 25 July 2007, the Government indicates that it is forwarding a copy to the CUT amongst others. The Committee will address these comments in greater detail together with any comments the Government may wish to formulate.

2. Work of equal value. For several years the Committee has been pointing out that the Substantive Labour Code ought to be amended in order to establish expressly the principle of equal remuneration for work of equal value and to bring the national legislation into line with the Convention. It observed previously that section 5 of Act No. 823 of 10 July 2003 issuing rules on equal opportunities for women contains, as does section 143 of the abovementioned Code, a principle that is narrower than the one set forth in the Convention since it refers to equal wages for “equal work” and not “work of equal value”, thus precluding any comparison of jobs that are different but that warrant equal remuneration because they are of equal value. The Committee asked the Government to consider amending the abovementioned provisions in order to bring them into line with the principle enshrined in Article 2(1) of the Convention.

3. The Committee notes that, according to the report, the Government considers that there is no need to amend the Labour Code in order to include the principle of equal value, because the Constitution provides that duly ratified international agreements “are an integral part of domestic legislation”, Convention No. 100 being a case in point. According to the report, “there is a specific rule on work and equal pay which states that ‘for equal work performed in a like post and according to the same schedule and conditions of efficiency, equal wages must be paid …’ (section 143 of the Labour Code)”. As the Committee has pointed out previously, this provision does not reflect the principle of the Convention, which includes but goes beyond the principle of equal pay for equal work performed in a like post. It draws the Government’s attention to its general observation of 2006 on the Convention, in which it explains the concept of equal value, and hopes that the general observation may be of use in clarifying the differences between equal work and work of equal value and the importance of appropriate legislation in applying the Convention. In paragraph 3 of its general observation, the Committee said as follows: “In order to address … occupational segregation, where men and women often perform different jobs, under different conditions, and even in different establishments, the concept of ‘work of equal value’ is essential, as it permits a broad scope of comparison. ‘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. Furthermore, the application of the Convention’s principle is not limited to comparisons between men and women in the same establishment or enterprise. It allows for a much broader comparison to be made between jobs performed by men and women in different places or enterprises, or between different employers.”

4. Legislative framework. In its general observation, the Committee stressed the importance of giving full legislative expression to the concept of work of equal value, since narrower provisions “hinder progress in eradicating gender-based pay discrimination against women at work”. The Committee went on to underline that “such legislation should not only provide for equal remuneration for equal, the same or similar work, but should also prohibit pay discrimination that occurs in situations where men and women perform different work that is nevertheless of equal value” (paragraph 6). Consequently, the Committee urges the Government to bring its legislation into line with the Convention’s principle of equal remuneration between men and women for work of equal value, including section 143 of the Substantive Labour Code and section 5 of Act No. 183 of 2003, as well as all other provisions of the legislation on this subject, and to provide relevant information of progress achieved in this regard.

The Committee is raising other matters in a request addressed directly to the Government.