Appendix 2 to the reply
Comments by the European Committee of
Social Rights (ECSR)
The Committee of Ministers has asked the ECSR to
forward any comments it might have on Parliamentary Assembly Recommendation 1907 (2010)
. In reply to this request, the ECSR wishes to make the following
2. The Charter is unique in Europe, not only in terms of the
rights guaranteed, but also because of the double dimension of its
supervisory mechanisms: an annual procedure based on national reports
on the one hand and a collective complaints procedure allowing civil
society organisations to lodge complaints on the other. The ECSR,
the regulatory body of the Charter made up of 15 independent and
impartial experts, rules on the conformity of national law and practice
under both these procedures.
With a view to ensuring the effective exercise of the right
to equal pay referred to in Parliamentary Assembly Recommendation 1907 (2010)
, Article 4§3 of the European Social Charter requires
states to recognise the right of men and women workers to equal
pay for work of equal value. From a wider perspective of safeguarding
the right of all workers to workplace equality, the principle of
equal pay without discrimination based on sex is also safeguarded
by Article 20 of the Revised Charter/Article 1 of the Additional
Protocol of 1988. Article 20 is one of the pillars of the Charter,
being one of the nine fundamental “hard core” provisions of the
4. In the context of its monitoring mechanism, the ECSR has established
a case law based on the principle of “equal pay for work of equal
value”. Equal pay is thus assessed in terms of the elaboration by
states of appropriate methods for evaluating jobs and positions
that permit the comparison of wages not only within a given enterprise
but also with other companies and branches. The promotion of equal
treatment of the sexes and equal opportunities for women and men
through collective agreements, including on equal pay matters, is a
prerequisite for the effectiveness of the rights set out in Articles
4§3 and 20 of the Charter.
5. In examining the conformity of national situations with Articles
4§3 and 20 of the Charter, the ECSR notes that the reasons for the
pay gap can be explained by the fact that women work in less valued
sectors which are therefore less remunerated. It believes that wage
discrimination will continue to exist as long as there are no effective
equal opportunities in the labour market.
6. Article 4§3 of the Charter requires that the right to equal
pay be expressly set out in domestic law and that all clauses in
employment contracts or collective agreements which violate the
principle of equal pay be held to be null and void. Furthermore,
courts must have the power to waive the application of the offending clauses
(Conclusions XIV-2, Addendum, Slovak Republic).
7. More precisely, the Charter, through its Article 4§3, requires
states to ensure that domestic law provides for appropriate and
effective remedies in the event of alleged wage discrimination.
Employees who claim that they have suffered discrimination must
be able to take their case to court (Conclusions I, Statement of Interpretation
on Article 4§3). Moreover, domestic legislation should provide for
a shift of the burden of proof in favour of the complainant in discrimination
cases and the victim must be entitled to adequate compensation, i.e.
compensation that is sufficient to make good the damage suffered
and act as a deterrent to the offender. Victimisation against a
person who has sought to enforce his/her rights is prohibited (Conclusions
2008, Article 20, Malta).
8. It should be noted that the ECSR oversees that states encourage
the adoption and promotion of other positive measures to reduce
the wage gap between women and men. Such measures concern, for example, the
implementation of measures to improve the quality of wage statistics
and their coverage as well as the inclusion of the issue of equal
pay as a priority in national action plans for employment.
Finally, the ECSR welcomes the initiative taken by the Parliamentary
Assembly with a view to the adoption of Recommendation 1907 (2010)
and reaffirms its commitment to ensuring compliance
with the right to equal pay for work of equal value for women and
men. It encourages the systematic sharing of information with other
Council of Europe bodies and with member states with a view to making
the work in the field of equal pay more effective.
10. In conclusion, the ECSR invites States Parties of the Charter
which have not yet accepted Articles 4§3 and 20 and/or the collective
complaints procedure to do so before 18 October 2011 (date of the 50th anniversary
of the Charter), as this would enable the competent organisations
to submit complaints with the ECSR concerning breaches of the right
to equal pay.