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

The Committee notes the communication of the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP), dated 23 July 2009, sent to the Government on 31 August 2009. The Committee notes that the communication refers to the violation of the principle of equal remuneration for work of equal value in the public sector and, specifically to the absence of rates of remuneration established without discrimination based on sex. The Committee notes that it has not yet received the Government’s observations in reply to the comments made by FENASEP. The Committee asks the Government to provide information on the application of the Convention in the public sector, including statistics on the wage levels of public servants disaggregated by sex, occupational category and post, and any other information that it considers appropriate in reply to the comments submitted by FENASEP.

Article 1 of the Convention. Work of equal value. The Committee refers to its previous comments in which it asked the Government to amend section 10 of the Labour Code, which is limited to guaranteeing equal remuneration for “equal work”, in order to give full legislative expression to the concept of equal remuneration for men and women for “work of equal value”, as provided for under the Convention. The Committee notes the Government’s indication that no progress has been made in this regard given that a consensus has not been reached among the social partners to amend the Labour Code. The Committee also notes that the Government reiterates the arguments put forward by the Legal Advisory Department of the Ministry of Labour and Employment Development (MITRADEL) that there is no inconsistency between section 10 of the Labour Code and the Convention. The Committee notes, in particular, that the Government indicates in its report that the Convention takes legal precedence over Panama’s national law and must therefore be applied in all labour relations and employment contracts.

However, the Committee notes the jurisprudence of the Supreme Court of Justice of Panama, referred to by FENASEP in its communication, that international conventions normally lack constitutional hierarchy and that the State therefore has an obligation to adapt its domestic legislation to the provisions of such conventions (Legal Registry of May 1991). The Committee also notes the difficulties which continue to be encountered in applying the Convention in practice, which are reflected in a significant and persistent wage gap between men and women. The Committee considers that there is a lack of understanding concerning the scope of the principle of the Convention and that incorporating this principle into the national legislation in accordance with the Convention would help to clarify the situation.

The Committee therefore draws the Government’s attention once again to its general observation of 2006. The Committee emphasizes that the concept of equal remuneration for “work of equal value”, although encompassing equal remuneration for “equal”, “the same” or “similar” work, is broader than that because it requires that equal remuneration also be given to workers carrying out work that is of an entirely different nature, but which is nevertheless of equal value. This comparison between different jobs is essential due to the gender segregation which exists in the labour market, which results in certain jobs being performed mainly or exclusively by men or women. The Committee also reminds the Government that provisions that are expressed more narrowly than the principle of equal remuneration for work of equal value hinder progress in eradicating gender-based pay discrimination. The Committee therefore asks the Government to:

(i)    promote dialogue with the social partners on the need to expressly prohibit pay discrimination in situations in which men and women perform different jobs which are nonetheless of equal value with a view to amending section 10 of the Labour Code;

(ii)   expressly establish in its legislation the principle of equal remuneration for work of equal value;

(iii) provide information on any progress made in these respects; and

(iv)  provide information on the steps taken or envisaged to promote understanding of the principle of the Convention by the authorities and organizations of workers and employers.

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