Demande directe (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

The Committee notes that the Government's report has not been received. It also notes the promulgation of Act No. 55 of 1995, amending Act No. 22 of 1992 on the Labour Code. The Committee hopes that a report will be supplied for examination by the Committee at its next session and that it will provide full information on the above cited legislation as well as on the matters raised in its previous direct request, which read as follows:

1. The Committee notes the Government's report and the comments from the National Federation of Workers' Councils (NFWC) pointing out that the Convention has not been officially promulgated and so there is not, as yet, any authentic Hungarian translation of it, and that there is no definition in the law of the term "remuneration" which corresponds to the definition in Article 1(a) of the Convention.

2. With regard to the application of section 141 of the 1992 Labour Code, which provides that employees are entitled to receive wages on the basis of their employment contract and that any other agreement specifying otherwise is null and void, the Committee notes the Government's explanations to the effect that this provision simply means that other agreements do not apply automatically to the contractual relationship between a worker and an employer. Since all other components of this remuneration are negotiable, the worker may not demand that some other agreement be applied automatically to his work contract. The Government assures the Committee that this provision has no effect on the application of the principle of equal remuneration since the general ban on discrimination applies to both the basic wage and the other components of remuneration which are paid without any discrimination based on sex. The NFWC contests this assertion on the grounds that, in practice, the principle of the Convention is applied only to the basic wage, there being no statutory definition of the term "remuneration" that corresponds to that of Article 1(a) of the Convention. In the case of performance-related pay, for example, the basic wage is paid only to workers attaining 100 per cent efficiency and the definition of the efficiency requirements are very largely the prerogative of the employer. The NFWC points out that the Labour Code does not allow a worker or a trade union organization, in negotiating with the employer, to request information on the remuneration paid to a worker of the opposite sex or to have access to documents relevant to wage fixing. The NFWC asserts that, as a result, there is no means of checking that the Convention is properly applied, as is borne out by the statistics, which show that, on average, women earn 10 to 15 per cent less than their male counterparts. The Government replies that, although the Labour Code does not expressly stipulate that the principle of equal remuneration applies to all components of remuneration, all discrimination in employment, including on grounds of sex, is banned by section 5 of the Code, and that the wording of Chapter VII (governing, inter alia, the emoluments paid by the employer other than the basic wage) is neutral as regards the sex of the worker. The Government refutes the NFWC's assertion concerning the communication of information, pointing out that under section 3(2) of the Code, the employer may communicate information or data to third parties (in the cases authorized by law or with the consent of the person concerned) and that under sections 21 and 22, trade unions have access to information concerning matters which affect the economic and social interests of workers in the context of their employment. The NFWC's aim is to change the situation so that it is no longer considered as a third party, which the Government cannot allow.

3. The Committee notes these explanations. With regard to the fact that the law does not expressly state that the principle of the Convention applies to all components of remuneration and not only the basic wage, the Committee hopes that the legislation will be amended as soon as the opportunity arises, in order to remove any ambiguities in this respect. With regard to the evaluation of the worker's performance, the Committee notes that, under section 143 of the Labour Code, it is the employer alone who determines the criteria concerning performance-related pay. Recalling that the social partners also have a responsibility for the application of the principle of equal remuneration, the Committee asks the Government to draw the attention of the employers' and workers' organizations, for instance within the Interest Coordination Council, to the importance of ensuring that the criteria for evaluating the performance of workers are free from all discrimination based on sex.

4. In its previous direct request, the Committee noted that article 70/B(2) of the 1989 Constitution guarantees the right to equal remuneration for equal work and asked the Government to provide information on how the broader concept of equal pay for work of equal value is applied, in accordance with Article 2 of the Convention. The Government replies that protection against discrimination between men and women in respect of work of equal value is guaranteed, since the Constitution and the legislation ban discrimination on grounds of sex and that the relevant provisions apply to equal work and also to work of equal value. The Government points out that there are penalties for employers who violate the ban and that, in cases of alleged discrimination, the burden of proof rests with the employer. The Committee therefore concludes that the expression equal work is to be construed not literally but as encompassing work of equal value within the meaning of the Convention. In view of the ambiguity of the term "equal", which may be interpreted more or less narrowly (see paragraph 44 of its General Survey on equal remuneration, 1986), the Committee hopes that in its future reports the Government will be able to provide examples of a broader application of this expression, for example in judicial decisions.

5. The Committee notes that, according to the National Report on the Status of Hungarian Women, prepared for the United Nations Fourth World Conference on Women, in 1993, women earned 25 per cent less on average than men. It notes that the existence of this wage gap is confirmed by the conclusions of a study to the effect that, between 1986 and 1994, the differential between men's and women's average wages narrowed from 35 per cent to 20 per cent. According to the same study, this improvement can be explained by an upgrading of the value of clerical work, where there is a majority of women, and by the fact that the sectors most affected by the economic recession are those employing a majority of low-skilled workers. However, the study shows that the reduction in the wage differential between men and women was counteracted by a considerable increase in the income advantage that men had over women in all jobs requiring high qualifications, and that, in the more developed regions of the country, when men and women performed the same jobs and had equal qualifications, men's earnings were higher. The Government also points out that the Information Bulletin on Income Rates in 1995, published by the Ministry of Labour in March 1996, confirms that there is a difference (of 10.5 per cent on average) between the wages of men and women in similar jobs. Since the Government stresses that, in the public sector, there is still discrimination similar to that in the private sector -- despite the fact that pay promotion schemes are fairly rigid in the public sector and do not make a distinction between men's and women's wages -- the Committee asks the Government to inform it of the measures taken or envisaged to determine the nature of these inequalities (for example by using the results of the study mentioned above) and to remedy them. With regard to the private sector, the Committee wishes to remind the Government that, when the State does not have the authority to ensure the application of the principle of equal remuneration, it should none the less encourage it and cooperate with employers' and workers' organizations in order to give effect to the provisions of the Convention. It therefore asks the Government to keep it informed of its efforts in this respect.

6. With regard to the NFWC's statement that no official translation in Hungarian has been promulgated, the Committee wishes to recall that promulgation by a member State of a ratified Convention is not an obligation under the ILO Constitution. Nevertheless, it draws the Government's attention to the fact that the application of a ratified Convention implies informing the persons concerned. Furthermore, Paragraph 7 of Recommendation No. 90 stresses that every effort should be made to promote public understanding of the grounds on which it is considered that the principle of equal remuneration for men and women workers for work of equal value should be implemented. Translating the Convention so that it can be broadly disseminated would be a means of promoting such understanding. The Committee draws the Government's attention to paragraphs 197 and 198 of the General Survey which give an account of the various means adopted to promote the application of the Convention by carrying out public information programmes.

7. The Committee notes that, in reply to its request for a copy of the "regulations on remuneration" issued under the Labour Code, referred to in its previous report, the Government indicates that there has been no such publication. With regard to other regulatory texts relevant to the implementation of the principle of the Convention, the Committee again asks the Government to provide, in its next report, a copy of the job classification established by Decree No. 6/1992 which, according to the Government, was appended to the present report but which has unfortunately not been received. It notes the Government's statement to the effect that, to date, there has been no study on the impact of the new system to ascertain whether it has led to any decrease in wage differentials in sectors employing mostly women.