Equal Pay for Equal Work in International Human Rights Law

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International Legal Framework

In International Human Rights Law, the right to Equal Pay for Equal Work was recognized in article 23 of the Universal Declaration of Human Rights. Later, it was recognized in other treaties as the Equal Remuneration Convention elaborated by the International Labor Organization and in several regional treaties.

It has also been recognized by the Committee on Economic, Social and Cultural Rights in their General Comments by interpreting other rights related to the principle of Non-Discrimination such as the right to just and favorable conditions of work.The right to equal pay for equal work has also being recognized within the European Union framework, where the European Commission has pointed out the persistence gender gap of 16.3% on average within the EU and studied the judicial and non-judicial enforcement of the Equal Pay for Equal Work right in relation with the European treaties. It has also been developped within the European Union and through the case-law of the European Committee of Social Rights.

The definition of Equal Pay for Equal Work: ¿What about Equal Value?

The right to equal pay for equal work is related to a more general legal framework, which is the right to equality and the principle of non-discrimination, because it seeks for equality between remuneration and work, normally it can be found within gender discussion, but it applies to any type of discrimination. It has been interpreted by the Committee on Economic, Social and Cultural Rights through the General Comment N°23 in a way of not only considering the same work but the value of the work as the point of comparison, because while the first one emphasize the equality between jobs, the second notion is related to remuneration based on equal value of work

According to the Committee, the International Covenant on Economic, Social and Cultural Rights states that in relation to the right of equal work for equal pay, states must guaranteed women condition of work not inferior to those enjoyed by men, this is related to the conditions included in contracts, for example, more arduous contract requirements, however this does not excludes the possibility of making well-founded differences, which is the case of conditions of work related to pregnancy and maternity.

According to the Committee, the International Covenant on Economic, Social and Cultural Rights states that in relation to the right of equal work for equal pay, states must guaranteed women condition of work not inferior to those enjoyed by men, this is related to the conditions included in contracts, for example, more arduous contract requirements, however this does not excludes the possibility of making well-founded differences, which is the case of conditions of work related to pregnancy and maternity.

The Equal Remuneration Convention emphasize the main obligation for States in what concerns the equal remuneration for men and women workers for work of equal value which means that the rates of remuneration should be established without discrimination based on sex, this concept has been recognized in domestic law, for example in Australia through the Workplace Relations Act 1996 which is intended to give effect to a number of international anti-discrimination conventions ratified by Australia

Moreover, the requirement of this principle goes beyond wages and includes other benefits paid directly or indirectly to workers . This notion of remuneration is also recognized within the Equal Remuneration Convention which states that “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

Furthermore, the General Comment N°23 analyzed whether equality of work and remuneration is being achieve or not, by emphasizing that the focus should be in the value of the work, hence, in order to evaluate equality, evaluation factors should include skills, responsibilities and effort required by workers, as well as working conditions . In order to determine equality the Committee states the importance of objective job evaluation to avoid indirect discrimination when comparing remuneration and values of different jobs. In doing so, it used the example of full time work and part time work, where full time workers might receive exclusively bonus, this can produce indirect discrimination if a higher percentage of women are part time workers.

In order to determine equality the Committee states the importance of objective job evaluation to avoid indirect discrimination when comparing remuneration and values of different jobs. In doing so, it used the example of full time work and part time work, where full time workers might receive exclusively bonus, this can produce indirect discrimination if a higher percentage of women are part time workers. Moreover, in order to asses if workers are performing work of equal value a comparison must be made considering several factors like the nature of work, training and working conditions..

Obligations to respect and fulfill related to Equal Pay for Equal Work

In international Human Rights Law is possible to find two main obligations: respect and fulfill which composed the general legal framework..Those obligations demands for States two type of obligations: negative and positive, the first one impose the obligation of not violation of human rights, which means that States should through their agents act agains the principle of Equal Pay for Equal Work. On the other hand, the obligation to fulfill demands the adoption of meausres to avoid the commission of acts agains the mentioned principle within the public and private sphere. In the case of the right for Equal Pay for Equal Work, States must adopt measures to guarantee its full enjoyment, it can be guaranteed by implementing national laws or regulation, legally established or recognized machinery for wage determination and collective agreements between employers and workers.

The right for Equal pay for Equal Remuneration demands to states the adoption of several measures, as the International Labor Organization has recognized in the General Recommendation related to Equal Remuneration, which emphasizes the application of this principle to men and women workers at national, local or provincial level.

The mentioned recommendation also points out that the principle of equal remuneration should also be applied through the establishment of minimum or rates wages in industries undertaken by public ownership and control, hence, the same when the work is executed under public contracts. The same logic was followed by the Committee on Economic, Social and cultural in the General Comment mentioned before when it stated that the principle applies to all sectors

Finally, it not only should be applied to public relationships, but also within the private sphere, hence, states should adopt measures to equality for work of equal value, by for example encouraging the establishment of a classification of jobs without regard to sex, requiring progressive decrease in the differential between of remuneration for men and womenor through the adoption of domestic law which should allow effective judicial remedies in front of human rights violations which means that employees should have the possibility of taking their case to domestic court

Bibliography

Primary Sources

1. UN General Assembly. (1948). "Universal declaration of human rights" (217 [III] A). Paris. See in: http://www.un.org/en/universal-declaration-human-rights

2. ILO. C100 - Equal Remuneration Convention, 1951 (No. 100) Adoption: Geneva, 34th ILC session (29 Jun 1951) See in:https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C100

3. UN. Comitee on Economic, Social and Cultural Rights. (2016). General Comment No. 23. on the right to just and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural Rights) See in: https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fGC%2f23&Lang=en

4. Ilo. R090 - Equal Remuneration Recommendation, 1951 (No. 90) Recommendation concerning Equal Remuneration for Men and Women Workers for Work of Equal Value. See in: https://www.ilo.org/dyn/normlex/en/f?p=1000:12100:::NO:12100:P12100_INSTRUMENT_ID:312428

Secondary Sources

1. Directorate-General for Justice and Consumers (European Commission), The enforcement of the principle of equal pay for equal work or work of equal value, 2018. See in: https://publications.europa.eu/en/publication-detail/-/publication/834d34ab-2d87-11e8-b5fe-01aa75ed71a1.

2. Equal Pay Handbook, Copyright © Commonwealth of Australia 1998. ISBN 0 642 26955 6 642 26955 6 Search this book on . See in:https://www.humanrights.gov.au/sites/default/files/content/pdf/sex_discrim/equal_pay.pdf

3. Equal Pay for Equal Work and Work of Equal Value: the Experience of Equality Bodies, 2013. See in: http://www.equineteurope.org/IMG/pdf/equal_pay_report_publication_.pdf

4. Eduardo Ferrer Mac-Gregor & Carlos María Pelayo Moller, The obligation to "respect" and "ensure." human rights in the light of the jurisprudence of the inter-american Court of human rights. Estudios constitucionales vol.10 no.2 Santiago 2012. See in:https://scielo.conicyt.cl/scielo.php?script=sci_arttext&pid=S0718-52002012000200004.

References

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