Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 1 and 2 of the Convention. Application in law and practice. In its previous comments, the Committee welcomed the addition of gender to the prohibited grounds of discrimination contained in article 8 of the Constitution. Noting, however, that this provision only protects individuals from discrimination by the State or its agencies and does not reflect fully the principle of equal remuneration for work of equal value, the Committee remained concerned about the lack of a provision reflecting the principle of the Convention in the Employment Act or in the Wages Council Act. The Committee also stressed that the lack of court cases concerning discrimination in remuneration based on sex, rather than indicating an absence of discrimination, could in fact indicate the lack of an appropriate legal basis or procedures for bringing these claims to the attention of competent bodies, and a lack of public awareness of the principle of the Convention and of the existing remedies under the law. The Committee further emphasized that patriarchal attitudes and stereotypes regarding the roles and responsibilities of women and men in society regularly result in gender-biased undervaluation of the work performed by women and discriminatory determination of wages, benefits and other forms of remuneration received by them. The Committee therefore considered that specific measures should be taken, in consultation with the social partners, to ensure the full application of the Convention in law and practice, including a review of the current legislation with a view to giving legislative expression to the principle of equal remuneration for men and women for work of equal value, and ensuring that it covers all the elements of remuneration indicated in Article 1(a) of the Convention.

The Committee notes that the Government expresses the view that the purpose of the Convention is that no employer is allowed to discriminate against workers on the basis of gender and that it provides for equal remuneration for the same work or work of a similar nature. The Government also states that the concept of equal remuneration, if based only on job evaluation and analysis, could be considered to be in conflict with the practice of determining remuneration on the basis of other factors such as academic qualifications or length of service. The Committee notes that, according to the Government, equal pay legislation would be incompatible with the practices of Malaysian industries, as under such legislation wage rates would be determined on the basis of a “politically motivating or social justice related factor”, rather than on the basis of productivity. In this regard, the Committee notes that promotional activities on the implementation of the “productivity linked wage system” (PLWG) are being carried out by the Industrial Relations Department. The Committee further notes the Government’s indication that in practice there is no discrimination in remuneration between men and women performing jobs of “the same nature and category” and that no cases of gender discrimination in respect of remuneration have been dealt with by the labour inspectors and the competent courts of law. The Government also states that in the unionized sectors remuneration is fixed by collective agreements, and, the question of discrimination would not arise.

The Committee concludes from the views expressed by the Government that there is a serious misunderstanding as to the meaning of the provisions of the Convention, their scope, and application in practice. At the outset, the Committee points out that the Convention places upon ratifying Members of the ILO the obligation to ensure respect for the principle of the Convention, wherever the State is the employer or is in a position to intervene in the wage-fixing process, and to promote its application in other cases, through all appropriate means. In this connection, the Committee considers that the adoption of legislation which gives effect expressly to the principle of equal remuneration for men and women for work of equal value is essential in order to promote and ensure its application, as required by the Convention. The Committee emphasizes that governments must act in good faith and cannot evade their obligations on the pretext that they are prevented from interfering in the wage-fixing process (see the General Survey of 1986 on equal remuneration, paragraph 29). Recalling its 2006 general observation, the Committee also wishes to stress that the principle of equal remuneration for work of equal value includes but goes beyond equal remuneration for “equal”, the “same” or “similar” work, and that it also encompasses work that is of an entirely different nature, which is nevertheless of equal value. The application of the principle presupposes that work performed by women and men is compared and evaluated on the basis of objective factors, such as skill, effort, responsibilities or working conditions. In this regard, Article 3 of the Convention envisages the promotion of objective job evaluation methods. Such methods are particularly important in order to avoid the discriminatory undervaluation of jobs in which women are concentrated. The Committee emphasizes that the application of the principle of equal remuneration for women and men for work of equal value by no means excludes consideration of productivity-related criteria, length of service or relevant academic requirements, in the setting of remuneration, as long as these criteria are used in an objective and non-discriminatory manner. In light of the above, the Committee asks the Government:

(i)    to take the necessary steps, in consultation with the social partners, to review the legislation so as to incorporate expressly the principle of equal remuneration for women and men for work of equal value, taking into account that it has to be applied to all the elements of remuneration as defined in Article 1(a) of the Convention;

(ii)   to take measures to promote the development and use of objective job evaluation on the basis of the work to be performed in line with the indications provided in the general observation of 2006 on this issue;

(iii) to take appropriate measures to raise awareness and promote public understanding of the principle of the Convention;

(iv)  to consider providing specific training on the concept of “work of equal value” and the issues relating to the application of the Convention to judges, labour inspectors and other relevant public officials, such as members of the inter-agency committees established by the Cabinet Committee on Gender Equality to review the national legislation ; and

(v)   to provide information on any steps taken and results achieved regarding the above.

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