Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report and the lengthy comments submitted by the Inter-Trade Union Assembly-Workers’ National Convention (PIT-CNT).

1.  Discrimination on the basis of sex.  In its earlier observations the Committee noted the observations presented by the Association of Employees of the National Board of Electrical Power Stations and Distribution (AUTE) - Inter-Union Assembly of Workers-National Convention of Workers (PIT-CNT) concerning discrimination on the basis of sex which took place in the National Board of Electrical Power Stations and Distribution (AUTE). It was alleged that, because special social security standards were applied to women, women workers received smaller amounts than men when they collected voluntary redundancy benefits. The Committee recalled the wide scope of Article 1(a) of the Convention andof Paragraph 2(b)(iv) of Recommendation No. 111 and requested the Government to inform it of the final results of the proceedings initiated by the labour inspectorate in this case. In this connection, the Committee takes note of the decision of the labour inspectorate of 15 August 1997, attached to the Government’s report.

2.  This decision contains an analysis of the allegations by the parties and the opinions of other bodies consulted. The Retirement Incentive Plan (hereinunder referred to as "the Plan") impugned by the representatives of the women workers, approved by Directorate decision of 10 September 1996, distinguishes between two categories of employees covered by the normal retirement system: (a) employees between 55 and 59 years of age, who would receive an incentive equivalent to 12 wages; and (b) employees who would receive, on reaching 60 years of age, an incentive equivalent to 18 wages. Although the Plan makes no reference to gender, the age band of 55 to 59, which receives an incentive of six months less, refers to women, since at the time that the situation arose only men could retire at 60 years of age under the ordinary scheme. The Committee notes that the decision of the labour inspectorate reveals that no one could have been unaware that, under the retirement scheme in force at the time of the Plan, a women of 55 years of age was in an identical situation legally, for the purposes of the Plan, as a man of 60 years of age, and that therefore their retirement incentives must be equal.

3.  The Committee notes with interest that in the above decision, the Labour Inspectorate urges the UTE Directorate "within the limits possible to it" to allow 18 months’ wages incentives to women public servants disadvantaged by the Plan in question. However, it notes that the phrase "within the limits possible to it" leaves doubts as to the obligatory nature of the order and as to the degree to which it may have been respected. The Committee recalls that where identical conditions, treatment or criteria apply to all, but their consequences seriously disfavour certain workers because of their race, colour, sex or religion, and such conditions have no direct connection with the requirements of the employment, it amounts to indirect discrimination. Please indicate whether all the women disfavoured by the indirect discrimination arising from the Plan have received the corresponding 18 months’ wage incentives, and if measures have been adopted to ensure the conferring of such benefits does not disproportionately disadvantage women as compared to men.

4.  Remedial procedures.  In its comments on the Government’s report, PIT-CNT indicates that, in addition to the demands referred to above, the union had filed a legal request based on Act No. 16045, which prohibits any discrimination in breach of the principle of equality of treatment and opportunity for both sexes. To this end, the union had recourse to the special, shortened procedure provided for under the abovementioned law. The law courts (of the first and second instance) ruled that this procedure had been abolished by the general standards provided for under the General Code of Legal Proceedings. The union holds that, should this criterion become generalized action taken in respect of labour discrimination on the basis of Act No. 16045 would follow an ordinary procedure, the duration of which could last three years, and the rapidity provided for under the abovementioned Act would be completely lost. The union suggests that the procedure for habeas corpus be adopted. The Committee has been unable to examine the judgement, since although the Government indicates that it has included a copy of the judgement of the Labour Appeal Court (Judgement No. 375 of 11/12/97), it has not been received. It requests a copy of the judgement and, recalling that the institution of accelerated procedures, which are inexpensive and easily accessible, is an important element in the application of the policy to promote equality of opportunity and treatment in employment and occupation (paragraphs 216-230 of the General Survey on equality in employment and occupation, 1988), it hopes the Government will provide information on current legal remedies, and in particular on the procedure of application of Act No. 16045, as well as possible access to accelerated procedures in this field.

5.  The Committee notes that PIT-CNT, in its comments on the application of the Convention, stresses that the Government should supply information on the practical application of the Convention, given that women are discriminated against in respect of recruitment, promotion, remuneration and training due to labour market segregation. The workers’ organization also points to racial discrimination. The Committee requests the Government to supply more detailed information, including statistics, on the present situation and on the efforts made to tackle discrimination on the basis of sex and racial discrimination in training, employment and occupation. The Committee will examine the specific questions raised in this paragraph in a direct request.

6.  In addition, a request regarding other points is being addressed directly to the Government.