Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 100) sur l'égalité de rémunération, 1951 - Pologne (Ratification: 1954)

Autre commentaire sur C100

Observation

2005

Demande directe

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The Committee notes the observations of the Independent and Self Governing Trade Union “Solidarnośc”, received on 11 September 2017, addressed by the Government in its report.

Articles 1 and 2 of the Convention. Equal remuneration for men and women for work of equal value and scope of comparison. Legislative developments. The Committee previously noted that section 18(3)(c) of the Labour Code provides for equal remuneration for the same work or work of equal value, defined as “work requiring comparable professional qualifications, responsibilities and effort”, but that in practice case law of the Supreme Court seems to limit the scope of comparison to the same enterprise referring to the comparability of positions that are “unique in the whole organizational structure of the employer”. The Committee notes the Government’s indication, in its report, that while the Labour Code does not in theory exclude the possibility of comparing wages between various enterprises, case law regularly refers to comparisons of wages at a single employer. The Government adds however that the issue of equality and comparability of wages will be examined in terms of compliance with international regulations in the framework of the tripartite Labour Law Codification Commission, appointed as a result of the Ordinance of 9 August 2016 (Dz. U. Item 1366) to prepare a draft Labour Code and a draft Collective Labour Law Code. In this regard, the Committee wishes to point out that: (i) the Convention does not limit the application of the principle of equal remuneration for men and women for work of equal value to the same establishment or enterprise, as 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; and that (ii) ensuring a broad scope of comparison is essential for the application of the principle of equal remuneration given the continued prevalence of occupational sex segregation (see 2012 General Survey on the Fundamental Conventions, paragraphs 697–699). The Committee takes note of the adoption of the Labour Code Amendment Act of 16 May 2019, which entered into force on 7 September 2019, but regrets that the Government did not seize this opportunity to extend the scope of comparison provided for under section 18(3)(c) of the Labour Code to ensure that the application of the principle of the Convention is not limited to the “same enterprise”. Noting that, in March 2018, the Chairman of the Codification Commission announced that the Commission completed its work and adopted a new draft Labour Code and a new draft Collective Labour Law Code, the Committee hopes that the Government will seize this opportunity to give full legislative expression to the principle of the Convention by explicitly allowing comparisons between jobs performed by men and women in different places or enterprises, or between different employers, and asks the Government to provide information on any progress made in this regard, in particular in the framework of the draft Labour Code and the draft Collective Labour Law Code as agreed by the Codification Commission. It asks the Government to provide updated information on the current status of the review and adoption of both draft Codes, as well as a copy of these pieces of legislation once adopted. In the meantime, the Committee asks the Government to provide information on the measures taken to raise awareness of labour inspectors, judges, prosecutors, and other relevant officials on the principle of the Convention, in particular concerning the scope of comparison, and their impact on the application of the principle of the Convention, including by providing a copy of relevant judicial decisions handed down on this issue, in particular by the Supreme Court.

Article 3. Objective job evaluation. The Committee previously noted that the 2013 Supreme Audit Office (SAO) inspection, carried out in the public sector, attributed the gender pay gap to the organizational structure of departments, as well as differences in qualifications, work experience, professional experience, competencies and commitment of employees. It hoped that the methodology to evaluate gender pay gap in enterprises, as a result of the National Programme of Activities for Equal Treatment for 2013-2016 (KPDRT), would lead to the development of objective job evaluation methods. The Committee notes that the Government refers to the operationalization, since May 2017, of an anonymous and free online application on the website of the Ministry of Family, Labour and Social Policy (MRPiPS) to help employers, both in the public and private sectors, to estimate wage differentials between men and women, but that no information is provided with respect to the elaboration or implementation of objective job evaluation methods, except that the Government is planning to undertake a gender pay gap survey in all ministries. The Committee wishes to stress 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, such as skills and qualifications, effort, responsibilities and working conditions, to avoid the assessment being tainted by gender bias (see General Survey, 2012, paragraph 695). Noting that the Government indicates that it is planning to undertake a gender pay survey in all the ministries, the Committee asks the Government to provide information on any job evaluation exercise initiated in the public sector, indicating the criteria used and the measures taken to ensure that men and women receive equal remuneration for work of equal value. It also asks the Government to provide information on any measures taken to promote the use of objective job evaluation methods and criteria that are free from gender bias, such as qualifications and skills, effort, responsibilities and conditions of work, in the private sector, including information on any cooperation undertaken with employers’ and workers’ organizations in this regard, for the purpose of giving effect to the provisions of the Convention.

Enforcement. The Committee notes that, according to the information provided by the Government, the number of complaints submitted to the labour inspectorate on gender discrimination with respect to “determination of remuneration and other conditions of employment” raised from 12 in 2015 to 21 in 2016. The Government adds that the labour inspectorate undertook several information and educational activities, such as free legal advice on equal treatment, publications and information campaigns, both at central and regional levels, for employers, workers, and their organizations, to ensure compliance with the relevant labour law regulations. The Government also refers to judgments issued by the Supreme Court in 2014 and 2016 on equal treatment. The Committee however notes that, in its observation, the Independent and Self Governing Trade Union “Solidarnośc” recommends that such information campaigns should also seek to raise awareness on the fact that inequality in remuneration between men and women is a form of discrimination contrary to the national legislation which engages employers’ liability and compensation. Furthermore, the Committee notes that, in its 2016 concluding observations, the UN Committee on Economic, Social and Cultural Rights recommended that the Government takes further measures to address the differences in remuneration for work of equal value by enforcing legislation and strengthening the capacity of the labour inspectorate with regard to monitoring of wage differentials (E/C.12/POL/CO/6, 26 October 2016, paragraph 24). The Committee asks the Government to continue to provide information on the activities of the labour inspectorate with respect to the principle of the Convention and to indicate the steps taken or envisaged to strengthen the capacity of the labour inspectorate to monitor wage differentials, including through the provision of appropriate tools to evaluate whether jobs performed by men and women are of equal value. The Committee also asks the Government to provide detailed information on the number, nature and outcome of any cases or complaints concerning inequality of remuneration detected by or reported to labour inspectors, the Commissioner for Human Rights, the courts or any other competent authorities, and to provide a copy of any decision issued in this regard.