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COUNCIL
OF EUROPE
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**
*
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* * *
CONSEIL
DE L'EUROPE
Committee of Ministers
Comite des Ministres
CMD007184
Restricted
CM(92)63
Addendum
Strasbourg, 13 March 1992
For consideration at the 474th
meeting of the Ministers' Deputies
(April 1992)
ADDENDUM
TO THE REPORT BY THE SECRETARY GENERAL
ON EQUALITY BETWEEN MEN AND WOMEN
IN THE COUNCIL OF EUROPE
CASE LAW OF THE COMMITTEE OF INDEPENDENT EXPERTS
ON THE EUROPEAN SOCIAL CHARTER
IN THE FIELD OF EQUALITY BETWEEN MEN AND WOMEN
(1969-1991)
- 2 -
CASE LAW OF THE COMMITTEE OF INDEPENDENT EXPERTS
ON THE EUROPEAN SOCIAL CHARTER
IN THE FIELD OF EQUALETY BETWEEN MEN AND WOMEN (1969-1991)
The case law of the-. Committee of Independent Experts in the
field of equality between men and women is mainly derived from
Article 1, paragraph 2; Article 4, paragraph 3; and Article 8,
paragraph 4.
These are obviousliy/ not the only provisions relevant to
equality: non-discrimination on grounds of sex underlies the
whole philosophy of the; European Social Charter, all but a few
of whose provisions are; applicable irrespective of sex. But the
provisions discussed hesre are the ones which address issues of
equality directly and unequivocally.
Parts I and II of the Charter apply either to "everyone" or
to "all workers". In: this connection, the Committee of
Independent Experts has ruled that "the term "worker" as used in
the Charter [applies] equally to female workers except in cases
where
the
context
demands
a
different interpretation"
(Conclusions IV, page 124).
NON-DtESCRIMINATION AT WORK
ARTICLE 1, PARAGRAPH 2
Article 1 - The right tO3 work
"With a view to ensuring the effective exercise of the right
to work, the Contracting! Parties undertake:
2.
to protect effectively the right of the worker to earn his
living in an occupation f:reely entered upon" .
From the outset, tfte Committee of Independent Experts has
considered that, essentially, this provision encompasses two
fundamental problems: the prohibition of forced labour and the
eradication of all forms of discrimination in employment.
- Conclusions I, page 15.
Only the second of these problems will be discussed here.
- 3 Non-discrimination at work must be defined with reference
to the situations it covers (A) and its implementation (B).
A.
Meaning of non-discrimination at work
The question has to be seen from two angles: (a) what does
non-discrimination include? and (b) what situations does the
notion of "at work" cover here?
a.
Non-discrimination
1.
Normally the principle applies universally, and there are
non-exhaustive lists that show this to be the case: "certain
requirements are not admissible under the Charter, such as those
based on race, colour, sex, political opinion, religion, etc".
- Conclusions VIII, pages 30 and 31
- Conclusions X-l, page 36
2.
The field in which the battle against discrimination in
employment has largely been fought is that of discrimination
based on sex, of which most victims are women, married women
especially. Discrimination in the word used to describe "the duty
of a female civil servant to resign on marriage and the fact that
married women cannot enter the civil service". The abolition of
provisions of this kind is always approved by the Committee.
- Conclusions I, page 166
3.
All the Contracting Parties are gradually abolishing this
form of discrimination from their legislation and endeavouring
to change attitudes.
-
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VII, general introduction, page XI
VIII, pages 8, 29 and 31
IX, page 12
X-l, general introduction, pages 17-19
X-l, page 35
4.
The Committee of Independent Experts does not merely make
general statements about sexual equality at work. It is extremely
vigilant and has, for instance, noted with satisfaction that
certain forms of "indirect" discrimination, founded notably on
marital or family status, have been abolished as well as all
related "residual discrimination" on matters such as social
security.
-
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VIII, page 31
IX, pages 12 and 13
X-l, page 24
X-2, general introduction, page 18
XII-1, page 45
5.
In other cases it has approved schemes "to encourage
employers to recruit and train women for jobs which were
previously usually filled by men, and vice versa", or "the
- 4 -
introduction of certain forms of positive discrimination with a
view to rectifying unsatisfactory employment situations".
-
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VIII, pages 32-33
IX, page 13
IX-2, general introduction, page 10
X-l, general introduction, page 18
X-2, page 42.
6.
But while the Committee's main efforts in the field of
sexual equality at work were concerned with improving the
situation of women, it has not overlooked cases in which
discrimination operates against men, as for example over access
to the profession of midwife. The Committee of Independent
Experts ruled that one state was failing to comply with article
1, paragraph 2, of the Charter because "certain restrictions on
the access of men to the profession of midwife" subsisted in its
legislation. It welcomed the abolition of those restrictions in
the following cycle.
- Conclusions VIII, page 33
- Conclusions IX, page 24
b.
Employment
The widest possible interpretation has always been
maintained. Employment therefore concerns all workers, all types
of employment, all sectors of activity and all aspects of
employment.
1.
Non-discrimination as a factor in the freedom to choose an
occupation applies to all workers, employers and employees alike,
but "the Charter does not prevent an employer from stipulating
whatever qualifications he may wish, provided that they do not
take the form of requirements not admissible by the Charter
(account being taken of article 31)".
- Conclusions VIII, page 30
- Conclusions XI-1, page 45
2.
Conversely, the "right of the worker to earn his living in
an occupation freely entered upon certainly does not confer upon
any worker, whether in the public service or not, the right to
employment of his choice regardless of his qualifications".
- Conclusions VIII, page 29
3.
Because the principle of non-discrimination must apply to
all jobs without exception, the Committee considered that a state
was failing to comply with article 1, paragraph 2, of the Charter
because that principle was not being applied "to employment for
the purposes of a private household and to firms not employing
more than 5 persons".
- Conclusions IX, page 25
- Conclusions X-l, page 38
- 5 4.
All sectors of activity are covered by the .principle of
non-discrimination:
public,
private,
professional
and
self-employed.
B.
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VII, general introduction, page XI
VII, pages 7-8
VIII, page 8
IX, page 12
IX-2, page 20
Implementation of non-discrimination
at work
The principle is implemented in law (a) , obviously, but also
in practice (b), for greater effectiveness.
a.
Implementation in law
1.
By the 1970's, all Contracting States had enacted
legislation "to promote equal treatment for men and women and
abolish all forms of discrimination in society" and "the fight
against discrimination in employment remained one of the
principle aspects of [this] commitment".
- Conclusions IX, page 12
- Conclusions X-l, general introduction, page 17
2.
From the outset, the removal of all legal obstacles to
equality was considered crucial.
- Conclusions I, page 16
3.
The Committee has, nevertheless, stated that "whilst the
Charter does not demand specific legislation to prevent
discrimination on a given ground, where existing law and practice
already exclude it, if such discrimination were to occur, it
would be inadmissible".
- Conclusions VII, page 9
4.
But even when legislation does provide for the elimination
of one or more forms of discrimination in employment, all clauses
to the contrary have to be repealed, otherwise the Committee of
Independent Experts considers that the State in question is not
complying with article 1, paragraph 2, of the Charter.
- Conclusions VIII, pages 31 and 33
- Conclusions IX, pages 24-25
- Conclusions X-l, page 35
b.
Implementation in practice
1.
The Committee of Independent Experts has always stated that
"acceptance of this paragraph [places] the Contracting States
under an obligation, inter alia, to provide appropriate education
and training to ensure the full exercise of the right [to
non-discrimination]", and that "positive, practical steps [must]
- 6 be taken to create a situation which really [ensures] complete
equality of treatment".
-
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
I, pages 15-16
IX, page 12
X-l, general introduction, page 18
XI-1, general introduction, page 20
XI-1, page 45
2.
This concern with practical effects led on the one hand to
the institution of equal opportunities monitoring bodies and, on
the other, to various endeavours to change attitudes, through
education and public awareness campaigns.
-
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VII, general introduction, page XII
VII, page 7
VIII, page 8 and 29
IX, page 12
IX-2, general introduction, page 10
X-2, general introduction, page 17
XI-2, page 50-51
XII-1, page 41
3.
These methods appear to have had some success, because at
the end of the "UN Decade for Women", "of all the areas covered
by the Charter, this [equal treatment for men and women] is
undoubtedly the one in which the change in the attitude of
society as a whole was most evident".
All governments are
continuing their endeavours in this direction.
- Conclusions X-l, general introduction, page 17
4.
Once all the Contracting Parties had adopted legislation on
equal treatment (albeit with difficulty in certain cases),
efforts were then concentrated on the effective application of
the principle of equality; for "the de facto situation is (...)
far from satisfactory". To the Committee it seemed that "the
trend in realising equality between women and men at work showed
a certain degree of stagnation, perhaps because the issue was now
more social and cultural than legal". The Committee accordingly
feels that "other, probably more political, methods [will] have
to be sought, and any activity along these lines [deserves]
support".
- Conclusions XI-2, pages 23 and 25
- Conclusions XII-1, provisional edition, pages 16 and 17.
NON-DISCRIMINATION BETWEEN MEN AND WOMEN WORKERS
WITH RESPECT TO REMUNERATION: ARTICLE 4, PARAGRAPH 3
Article 4 - the right to a fair remuneration
"With a view to ensuring the effective exercise of the right
to a fair remuneration, the Contracting Parties undertake:
- 7 -
3.
to recognise the right of men and women workers to equal pay
for work of equal value;
The exercise of these rights shall be achieved by freely
concluded collective agreements, by statutory wage-fixing
machinery, or by other means appropriate to national conditions.
The independent experts have been concerned to interpret (A)
this
provision
and
clarify
the
arrangements
for
its
implementation (B).
INTERPRETATION
The Committee of Independent Experts has adopted a two-tier
approach, indicating the meaning (a) of Article 4, paragraph 3,
and effecting a comparison with ILO Convention No. 100 (b).
A.
Meaning of Article, 4 paragraph 3
a.
Equality must exist in law and in fact
1.
From the start, during the first cycle of supervision, the
Committee of Independent Experts made a point of emphasising that
"this provision obliges the Contracting States who have accepted
it to recognise the principle of equal pay for work of equal
value, not only in law but also in fact".
- Conclusions I, page 28
- First report on certain provisions of the Charter which
have not been accepted, page 9.
2.
Consequently, it has been constantly concerned "to determine
the reality behind the appearances" and has not been content to
consider de jure situations only, because "legislation which at
first sight may seem very satisfactory is sometimes inadequately
or poorly applied". Furthermore, it considers that "the search
for this kind of reality implicitly required by the terms of the
Charter, as in Article 4 (...) which [provides] that certain
undertakings may be implemented, otherwise than by law".
- Conclusions III, general introduction, page XIII
- Conclusions IV, general introduction, page XVI.
3.
It has constantly observed this twofold line of research de jure and de facto - throughout successive cycles of
supervision, stating that "two criteria should be applied to
determine whether the right to equal pay for work of equal value
is being respected: firstly, to see whether in law and in fact
equal pay is guaranteed for equal work" ..., or noting that
"progress
had
been
clearly
been
made
in
eliminating
discriminatory treatment, but the relevant information was based
- 8 rather on legal texts than on statistical data", or again
concluding that "the situation in law ... was now in conformity
to the Charter on this point. However, being aware of this
problem posed by the application of the (...) Act, the committee
wished to find in the next (...) report information on the
measures taken to ensure a satisfactory application of the Act
... it .
-
Conclusions II, page 19
Conclusions III, page 26
Conclusions VIII, pages 68 and 69
Conclusions IX-2, page 40
Conclusions X-l, pages 60-61
First report on certain provisions
have not been accepted, page 10.
of the Charter which
4.
It is this concern with reality, having regard both to
situations and to the principle of equality, which has caused the
Committee to consider in connection with certain national
situations that "the aim stated in para. 3 of Article 4 [has not
been] achieved [partly because] collective agreements [lay] down
a minimum wage only, and not the real wage, and so [do] not
permit effective comparisons between what men [are] paid and what
women [are] paid for the same work".
- Conclusions IV, page 35
- Conclusions V, pages 32 and 33
5.
The same concern has prompted the Committee at times to ask
for "fuller and more accurate statistics on what action has been
taken by governments".
- Conclusions II, page 1
- Conclusions III, pages 27 and 29
- Conclusions VI, general introduction, page XV.
6.
On the question of de "jure recognition of the principle of
equality, the Committee has stated that "the legislation of a
State which has accepted this provision must prescribe [this]".
- Conclusions VIII, page 66
b.
Equal pay applies to equal work and to work of equal
value
1.
This point appeared to require no clarification, as the
wording of paragraph 3 of Article 4 was plain enough.
The
Committee nevertheless emphasised this double aspect in
requesting further information on "the steps taken (...) to
ensure equal pay for the same work" and "what has been done to
ensure equal pay for work of equal value".
- Conclusions III, page 27
2.
On another occasion it found that "although (...) equality
of pay for equal work has become a reality in most Contracting
- 9 Parties, the situation is far less satisfactory when it comes to
the notion of the value of work done (...)".
- Conclusions IV, page 34
- Conclusions V, general introduction, page XVIII.
3.
The principle was re-stated clearly: "the legislation of the
State which has accepted this provision must prescribe that men
and women workers must receive equal pay not only for equal work
but also for work of equal value". The Committee invariably
expresses satisfaction when this is the case, and regret when a
country's legislation on equal pay applies to "the same work" but
not to "work of equal value".
- Conclusions VI, page 24
- Conclusions VIII, pages 66 to 68
- Conclusions IX, page 42
c.
The principle of equal pay must apply to all
1.
This idea was implicit in the Committee's statement of the
principle at the end of the second cycle of supervision. Here
again, no explanation seemed to be needed.
The Committee
nevertheless had to spell it out for the benefit of a State which
"had no plans to take legislative measures to ensure equal pay
for men and women doing the same work, for the sole reason that
the number of agreements which failed to respect this principle
seemed to be very low and going down even further" .
The
Committee could not accept "the argument that only a very few
working women were affected since, unlike other provisions of the
Charter, paragraph 3 of Article 4 must be put into effect for the
entire workforce of both sexes, as this provision is not among
those for which Article 33 lays down that application to the
great majority of workers concerned is sufficient".
- Conclusions II, page 18
- Conclusions IV, page 33
2.
Questions have been asked for similar reasons about the
application of the principle to public service workers.
- Conclusions VIII, pages 68 and 70
B.
Comparison between Article 4, paragraph 3 of the Charter
and Article 2 of ILO Convention No. 100
1.
The Committee makes the point that "the Charter goes further
than ILO Convention No. 100, as is evident from a comparison of
the two international instruments, since the Charter included an
explicit undertaking to recognise this right, whereas under the
ILO Convention the States merely undertake to promote the
application of the principle of equal pay for work of equal
value".
- Conclusions II, page 18
- 10 - First report on certain provisions of the Charter which
have not been accepted, page 9
2 . The Committee discussed the distinction in greater depth in
setting out the obligations implied by each text: ILO Convention
No. 100 enshrines the commitment to apply the principle "in so
far as this is consistent with the method of operation for
determining rates of remuneration". Whereas "the obligation to
ensure enjoyment of this right is, in the Charter, absolute".
- Conclusions II, page 18
3.
From this last point, the Committee drew a conclusion of
fundamental importance: it "wished to make it clear that if, in
a country which has accepted this undertaking [Article 4,
paragraph 3, of the Charter] the full exercise of the rights to
equal remuneration cannot be ensured for all workers simply
through the operation of collective agreements, the State is
required to intervene by way of statutory wage-fixing machinery
or any other appropriate method".
- Conclusions II, page 18
IMPLEMENTATION
The Committee's main concern in the early stages was to
determine what means were (a) necessary for the effective
implementation of the principle; later its attention turned more
to the guarantees (b) by which effective enjoyment of the right
could be assured.
A.
Means
The Committee singled out four means, not all of equal
importance.
a.
State intervention
1.
In many countries, wage fixing was traditionally a matter
for the collective bargaining machinery, but as early as the
second cycle of supervision, the Committee set limits to this
competence in regard to equal pay, saying that the State was
required to intervene if the application of the principle of
Article 4, paragraph 3, could not be ensured simply through the
operation of collective agreements. It referred - though without
special emphasis - to the final paragraph of Article 4.
- Conclusions II, page 18
2.
The Committee has constantly recalled this requirement,
explaining that Article 4, paragraph 3 "laid upon Contracting
States an obligation to implement the principle of equal pay for
work of equal value alternatively by three methods: collective
agreements, legislation, or by other means appropriate to
national conditions.
This meant that if the first method is
applied and does not give any results which are consistent with
-lithe Charter, owing to the attitude taken by employers' and
workers' organisations, the State concerned must nevertheless
intervene through legislation or any other methods likely to
attain the aforementioned goal".
- Conclusions V, page 31
- Conclusions VII, general introduction, page XVI
3.
Examination of national reports on provisions of the Charter
which have not been accepted confirmed the experts' view and
prompted them to set it out in precise terms: "in [certain]
states (...) questions connected with wages (...) are not
normally dealt with by legislation. However (...), this approach
does not in itself seem sufficient to ensure the general
implementation of the right enshrined in this article of the
Charter. Thus legislative action is necessary, at least in order
to determine the general rules which employers and employees
should follow in their wage negotiations (eg abolition of
differential scales, nullity of discriminatory contracts or
clauses etc)".
- First report on certain provisions of the Charter which
have not been accepted, page 10
4.
The overall result on this point seems encouraging: "it
emerged from an examination of the report submitted that
statutory provision for equal treatment between men and women has
been made in all fields".
- Conclusions IX-2, general introduction, page 10
5.
However the Committee was aware at a very early stage that
there were limits to the effectiveness of legislative action:
"while it is possible for a state to require by law, in default
of collective agreements, compliance with the rule of equal pay
[for equal work, implementation of the rule of equal pay] for
work of equal value involves comparison and assessment of many
complicated factors subject to variation in time and space" .
- Conclusions II, page 19
- 12 b.
Objective "job evaluation
1.
The need for such evaluation was recognised from the outset:
"equal pay for men and women workers is required for work of
equal value, this presupposes the establishment by the
governments of the States concerned of objective criteria for
evaluating work,
on the basis of appropriate
methods
(commissions, surveys, etc)".
- Conclusions I, p. 28
2.
The complexity of comparison and assessment operations
observed, which led the Committee to suggest that
requirements of Article 4 para. 3 could be "regarded as being
if (...) the Contracting Party provided evidence that it
taken all steps within its power to achieve equality
remuneration for work of comparable value".
was
the
met
had
of
- Conclusions II, p. 19
3.
This led the Committee to remind Contracting States of the
ffc
need "to have full information on the objective criteria applied
~'
in each State to determine the equal worth of labour" and to ask
the various States concerned, in each supervision cycle, a number
of questions concerning "job evaluation", "job classification",
"job evaluation methods", "objective criteria applied to giving
meaning to the notion of equality in the value of labour", "the
establishment of an occupational nomenclature" . . ., stressing that
job-evaluation was "vital for the realisation of equal pay for
work of equal value".
-
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
II, p. 19 and 20
III, p. 26-28
IV, p. 34 and 35
V, p. 32 and 33
VI, p. 25 and 26
VII, p. 26-28
VIII, p. 68 and 69
IX-2, p. 38 and 39
X-2, p. 63 and 64
XI-1, p. 77
XII-1, p. 83
4.
While regretting that "evaluation is still in the embryonic
stage, and is always restricted to certain sectors of the economy
or even to a few firms in the industrial sector", the Committee
"recognised that the effective implementation of the principle
of 'equal pay for work of equal value' could only be realised
progressively, and that it encountered numerous difficulties in
all countries".
- Conclusions V, general introduction, p. XVIII
- Conclusions V, p. 32
5.
However it did note the fact "some progress has been made
towards establishing new objective criteria for job evaluation
- 13 -
..." and stressed "the need (...) for continued research into
methods of assessing the comparative values of different jobs".
- Conclusions VI, general introduction, p. XV
- Conclusions VII, general introduction, p. XVI
- Conclusions IX, general introduction, p. 13
6.
The first procedure on provisions of the Charter which have
not been accepted, which dealt inter alia with Article 4,
paragraph 3, provided an opportunity for the experts to reiterate
the fact that the establishment "of objective criteria for
assessing equivalence for jobs in all the economic sectors" was
one possible approach for the effective protection of the right
to equal pay but it also allowed them to stipulate the limits of
the obligations upon States concerning this evaluation: in reply
to remarks made by the government of a State, they said that "the
Committee was unable to accept this suggestion (...) that
acceptance of the principle would necessitate compulsory job
evaluation throughout the economy: it felt that it would suffice
if the right of a woman to equal pay were adequately guaranteed
through the judicial system - for example by according her the
right to claim job evaluation in her individual case".
- First report on certain provisions of the Charter which
have not been accepted, p. 10 and 11.
c.
Raising of low salaries in sectors with a predominantly
female labour force
1.
The Committee of Independent Experts noted that job
evaluation was weakest in "the branches of the economy in which
women workers hold most or all of the jobs" which has regularly
led it to ask specific questions on these branches of the economy
and ask for objective job evaluation "particularly in sectors
with a predominantly female labour force".
-
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
III, p. 27 and 28
IV, p. 34
V, general introduction p. XVIII
V, p. 32 and 33
IX-2 p. 39
X-2, p. 63 and 64
2.
The
Committee
also
observed
that
female
workers
"traditionally do lower paid jobs", although this is not direct
discrimination since female labour is often less qualified.
- Conclusions IX, general introduction, p. 13
- Conclusions IX-2, general introduction, p. 11
- Conclusions X-l, p. 64
3.
This is why the Committee said it is "aware that complete
equality of remuneration between men and women cannot be achieved
- 14 with an upgrading of salaries and wages in the economic sectors
where female labour is prevalent".
- First report on certain provisions of the Charter which
have not been accepted, p. 9.
4.
Consequently it regularly asks for information on progress
made "in the upgrading of wages in sectors categorised by
relatively low remuneration and traditionally employing large
numbers of women"; or indeed it draws attention to "a progressive
increase in the level of lower salaries (...) (with a beneficial
effect, in general, for women workers) together with a reduction
in the average difference between salaries for male and female
workers".
d.
Conclusions
Conclusions
Conclusions
Conclusions
VI, p. 25
VIII, pages 67 and 68
IX, pages 43 and 44
IX-2, p. 39
Influence on attitudes
I.
Stressing that "efforts should be continued in order to
achieve the effective implementation of the principle of equal
remuneration", the Committee of Independent Experts added that
it was also "often a matter of changing social attitudes. It
noted in this context the national campaign carried out [in a
particular State] with the objective of increasing the
population's concern with the different aspects of this problem".
- First report on certain provisions of the Charter which
have not been accepted, p. 10
- Conclusions II, general introduction, p. XVI
2.
The reference to "awareness and information campaigns", or
"measures... designed to change the attitudes of employers and
society in general" now feature on the list of "efforts (...)
made to ensure the genuine implementation of the principle of
equality of remuneration between men and women".
B.
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VIII, p. 69
IX-2, general introduction, p. 10
X-2, p. 64
XI-1, p. 78
XII-1, p. 86
Guarantees
1.
During the 8th supervision cycle, the Committee of
Independent Experts explained more fully the scope of Article 4
paragraph 3. After reiterating that this supervision covered "not
only... equal work but also... work of equal value", it attached
three guarantees to the application of this principle:
- 15 -
- "any clauses of collective agreements or individual
contracts which contravene this principle must be
declared null and void by law;
- the protection of this right must be ensured through
adequate remedies,
- workers must enjoy effective protection from measures of
retaliation arising from their claim for equal pay
(notably protection against dismissal)".
- Conclusions VIII, p. 66
a.
Nullity of contravening clauses
1.
This is a point which the Independent Experts check
systematically; either they note the existence of provisions to
this end, or in the absence of information they ask a question
on the subject. If no such provision exists the State concerned
cannot satisfy the requirements of Article 4, paragraph 3.
b.
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VI, p. 25
:
VIII, p. 67-71
IX, p. 42 and 44
IX-2, p. 39
X-l, p. 42-45
X-2, p. 63
XI-1, general introduction, p. 22
XI-1, p. 77
XI-2, general introduction, p. .24
XI-2, p. 71
,
Adequate remedies
1.
Adequate remedies were accepted relatively quickly by the
domestic legislation of Council of Europe member States,
particularly those which are also European Community members, and
the Committee observed, in the first procedure on provisions of
the Charter which have not been accepted, "a trend towards the
granting of judicial guarantees, based on the recognition of an
individual right in this matter. Stimulated by certain
international standards or directives (...) some states have
entitled women workers to take legal action (usually in a labour
court) to secure effective protection of this right".
-
Conclusions V, p. 32
Conclusions VI, p. 25
Conclusions VII, general introduction, p. 16
Conclusions VII, p. 28
First report on certain provisions of the Charter which
have not been accepted, p. 10
- Conclusions XII-1, p. 87
2.
The question of the existence of remedies is also
systematically examined by the Committee which noted the
existence of "appropriate legislation in the States examined,
- 16 providing (...) the right of appeal to a judicial authority". It
also noted that "all the countries have commissions responsible
for enforcing the principle of equal treatment for men and women.
The existence of such bodies does not, however, rule out appeal
to the courts as by the means of safeguarding the right to equal
treatment in particular the right to equal pay, which is
guaranteed in all the States which have accepted the relevant
provisions of the Charter".
c.
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VIII, p. 67-71
IX, general introduction, p. 13
IX-2, general introduction, p. 11
IX-2, p. 39
X-l, p. 44 and 45
Effective protection against retaliation measures
1.
As soon as the question arose, the Committee stated that "if
a worker is threatened with the possibility of losing his job as
a consequence of his exercising a fundamental right, such as the
right to equal pay this could well result in the worker
refraining from submitting his/her claim so rendering this right
devoid of the greatest part of its significance". It considered
that when "a worker is not sufficiently protected against
dismissal resulting from the claim to benefit from equality of
remuneration (...), any such deficiency in the legislation was
not in conformity with Article 4, paragraph 3 of the Charter".
-
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VII, general introduction, p. XVI
VII, p. 27
X-2, p. 63
XI-1, p. 75
XI-2, general introduction, p. 24
XI-2, p. 71
XII-1, general introduction, p. 17
XII-1, p. 83
2.
This question is also systematically checked. When dismissal
on such grounds is possible, even accompanied by compensation for
damages, the Committee considers that the state concerned does
not satisfy the requirements of Article 4, paragraph 3 when the
amount of compensation is neither "a sufficient deterrent for the
employer or adequate compensation for the employer concerned".
Only the compulsory reinstatement of the employee appears to be
satisfactory unless the employee concerned refuses.
-
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VIII, p. 67 to 71
IX, general introduction, p. 13
IX, p. 42 to 44
IX-2, p. 39 and 40
X-l, general introduction, p. 8
X-l, p. 42 to 45
XI-1, general introduction, p. 22
XI-1, p. 73
XII-1, general introduction, p. 17
XII-1, p. 82 and 86
- 17 -
3.
However, in one case the Committee accepted that
"considering the whole of the . . . provisions and the level of the
damages awarded [under the legislation]," the State concerned
complied with the provisions of Article 4, paragraph 3 of the
Charter. It should be pointed out that the legislation of this
State prohibits dismissal of an employee as a retaliatory
measure, provides for a legal remedy should it occur and provides
for the reinstatement of the worker in his employment in the
public sector. It is only in the private sector that
reinstatement did not appear to be possible if the employer
refused and only in this situation may dismissal be maintained
albeit accompanied by high compensation.
- Conclusion IX, p. 43 to 44
4.
The Committee does not omit to concern itself with reprisals
other than dismissal and has also considered the matter of burden
of proof. It noted that in one State "whilst an employer was not
entitled to impose a sanction on a worker for the sole reason
that he/she had taken court proceedings, he was nevertheless not
required to give reasons for dismissal. The dismissed worker thus
faced serious difficulties in proving that his/her dismissal was
caused by his/her having taken a legal action". The Committee
therefore considered that this situation was "not entirely
satisfactory".
-
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
Conclusions
VIII, p. 69
IX, p. 43
IX-2, p. 39
X-l, p. 43-45
XI-2, p. 72
XII-1, p. 85
.
REGULATIONS GOVERNING NIGHT WORK AND THE PROHIBITION OF
THE EMPLOYMENT OF WOMEN WORKERS IN DANGEROUS,
UNHEALTHY OR ARDUOUS WORK
ARTICLE 8, Paragraph 4
Article 8 - The right of employed women to protection
With a view to ensuring the effective exercise of the right
of employed women to protection, the Contracting Parties
undertake:
4a) to regulate the employment of women workers on night work
in industrial employment;
b)
to prohibit the employment of women workers in underground
mining, and, as appropriate,. on all other work which is
unsuitable for them by reason of its dangerous, unhealthy, or
arduous nature.
- 18 Regulations under paragraph (a)
1.
The Committee wished "to stress that the Charter does not
prohibit night work by women, but lays down that it should be
regulated". It noted developments in this area "which, though
formally prohibited for women, forms now part of the claims put
forward by them, since the prohibition of this type of work may
be prejudicial to women, at a time when search for a job is
becoming increasingly difficult". It seemed clear to the
Committee "that a total ban would today be incompatible with an
egalitarian conception of the rights of men and women with regard
to employment. The obligation (...) not to prohibit but to
regulate night work by women in industrial employment thus makes
it possible to adopt, in this area, a more flexible attitude".
- Conclusions VII, general introduction, p. XVI
- Conclusions IX, general introduction, p. 14
- Conclusions X-l, general introduction, p. 9
2.
Having noted "a trend towards regulating night work for both
men and women", the Committee was prompted to ask "whether if
such regulation applies to men equally with women workers, the
requirements of this provision are met". It considered that "the
regulations should be such as to afford women workers protection
against the harmful physical (and sociological) effects of night
work, [given that] if this protection is afforded to women by
measures of general application, it is not necessary to take
further measures to afford them additional 'special' protection
over -fefee-above that given to men".
-
Conclusions IX, general introduction, page 14
Conclusions X-l, general introduction, page 9
Conclusions X-l,.p. 73
Second report on certain provisions of the Charter which
have not been accepted, p. 15
3.
Thus, true to its position in principle, the Committee
accepted, in the interests of non-discrimination on the grounds
of sex, flexible regulations governing night work by women in
industry; such regulation is necessary and must be effective "in
order to prevent abuse, given the adverse effects of night work
on health and family life". This issue will need to be reviewed
insofar as several countries bound by the Charter and having
accepted this provision, are at present calling into question the
banning and even the regulating of night work by women in
industry.
-
Conclusions VIII, pages 131 and 132
Conclusions IX, general introduction page 14
Conclusions IX-1, Addendum page 23
Conclusions X-l, general introduction, page 20
Conclusions X-l, page 73
Second report on certain provisions of the Charter which
have not been accepted, page 18
- 19 4.
The Committee summed up these various points thus setting
out the scope of this provision.
- Conclusions X-2, page 92
Regulations under sub-paragraph b
a.
Underground mining
1.
The Committee took the view "that this provision of the
Charter prohibited employment of women in underground mining
(...) and not any work carried out underground in a mine, unless,
of course, such work was 'unsuitable by reason of its dangerous,
unhealthy or arduous nature' as provided for in paragraph 4 (b)
of Article 8". The application of this interpretation to the
legislative changes that had prompted it led the Committee to
reach a favourable conclusion since these changes did "not really
allow employment of women in 'underground mining' or any other
work 'unsuitable by reason of its being dangerous, unhealthy or
arduous'" .
- Conclusions VI, page 71
2.
For mining work in the strict sense, the Committee will
accept no derogations to the ban and considered that one State's
legislation was "not in line with the Charter as it did riot
prohibit the employment of women in underground mining" . Nor does
it accept the total absence of protection, which already poses,
and will increasingly pose, the problem of reconciling the need
for non-discrimination on grounds of sex with the need for the
specific protection of women workers, particularly since as far
as this type of work is concerned, the Charter imposes a ban and
not, as for night work, regulations.
- Second report on certain provisions of the Charter which
have not been accepted, pages 18 and 20
- Conclusions XI-2, page 103
The Committee explicitly limited this ban to underground
extraction work in mines.
- Conclusions X-2, page 97
b.
Dangerous, unhealthy or arduous work
1.
The Committee has never indicated what is to be understood
under this heading. It remarks generally that a State prohibits
or does not prohibit the employment of women in a relatively high
number of occupations of a dangerous or unhealthy nature or in
work regarded as particularly dangerous, unhealthy or arduous and
draws a conclusion, on this specific point, of compliance or noncompliance with the Charter, sometimes accompanied by a
reservation: "... if it was admitted that apart from the
activities covered by [the Act] . . . there were no kinds of
work... that were regarded as dangerous, unhealthy or arduous for
- 20 women, ... [this state] was fulfilling the undertaking deriving
from paragraph 4 of Article 8 of the Charter".
-
Conclusions
Conclusions
Conclusions
Conclusions
I, page 52
VI, page 71
VIII, pages 131 and 132
X-l, page 72
2.
The Committee reaffirmed unequivocally "that protecting
women workers in appropriate cases (...) against strenuous or
dangerous working conditions was still a socially valuable aim
to pursue" and that in these "appropriate cases" special
protection should be afforded to women since, as with night work,
"where a country's legislation provides in effect that any
occupation which is suitable for a man is, a priori, also
suitable for a woman (whether it is carried out during day time
or at night) , it would not consider this to be in compliance with
the Charter". On this point also conflict between nondiscrimination on the grounds of sex and protection of women
workers is becoming increasingly pointed.
- Second report on certain provisions of the Charter which
have not been accepted, pages 16 and 17
The Committee has tried to avoid this conflict by limiting
the scope of this requirement, so as to "limit the prohibition
of employment of women in the above-mentioned occupations to the
sole cases where this is necessary, in particular to protect
motherhood, notably pregnancy, confinement and the post-natal
period, as well as future children".
- Conclusions X-2, page 97