Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Equal Remuneration Convention, 1951 (No. 100) - Portugal (Ratification: 1967)

The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and the General Confederation of Portuguese Workers - National Trade Unions (CGTP-IN) communicated with the Government’s report.

Articles 1 and 2 of the Convention. Equal pay for men and women and wage transparency. The Committee previously noted the adoption of Law No. 60/2018, which establishes a set of measures intended to contribute to a better implementation of the principle of the Convention. It asked the Government to provide information on any measures taken to raise awareness of the provisions of this new legislation, as well as on its implementation in practice. The Committee notes the Government’s indication that within the context of Law No. 60/2018, a balance sheet of wage differences between men and women, by company, was elaborated in 2019 and made available to all employers in November 2020. Furthermore, a sector-level barometer was recently developed by the Ministry of Labour, Solidarity and Social Security based on information provided every year by companies. This barometer is meant to improve statistics regarding pay disparities by economic activity sector, raise awareness, and promote a wide-ranging debate on equal pay in the society. The Committee welcomes this information. It notes that, in its observations, the CIP indicates that Law No. 60/2018 still gives rise to a series of interpretative doubts, which remains unanswered despite a formal request for clarifications made by three national confederations of employers. The Committee further notes that the CGTP-IN considers that, in practice, Law No. 60/2018 has a limited impact, being only implemented by a few companies. The Committee asks the Government to continue to provide information on the implementation of Law No. 60/2018 of 21 August 2018, in practice, including data on the level of compliance with the statutory implementation of transparent wage policies at the company level, information on sanctions imposed in cases of non-compliance, as well as on any actions taken to address gender wage gaps. It further asks the Government to provide information on the number of: (i) notifications made by the Working Conditions Authority requesting companies to elaborate an evaluation plan on wage disparities within the company and the appropriate corrective measures taken; and (ii) binding opinions compelling employers to eradicate gender pay discrimination practices formulated by the Commission for Equality in Labour and Employment (CITE). The Committee asks the Government to provide information on any measures taken to answer interpretative doubts regarding the provisions of Law No. 60/2018 that may remain among workers, employers and their respective organizations, with a view to ensuring a full understanding and implementation of the legislation.

Article 1(b). Work of equal value. Scope of comparison. The Committee previously noted that section 23(d) of the Labour Code defines “work of equal value” as work for which duties performed at the service of the same employer are equivalent, with respect to the qualifications or experience required, the responsibilities assigned, the physical and mental effort and the conditions under which the work is performed. It recalled that the application of the principle of the Convention should not be limited to comparisons between men and women in the same establishment, enterprise or sector but allows for a much broader comparison to be made between jobs performed by men and women in different places or enterprises, or between different employers or sectors. Where women are heavily concentrated in certain sectors or occupations, there is a risk that the possibilities for comparison at the enterprise or establishment level may be insufficient (see 2012 General Survey on the fundamental Conventions, paragraphs 697–698). Noting that the Government did not provide information in that regard, the Committee again asks the Government to provide information on the measures taken or envisaged to ensure that, when assessing the equal value of jobs, comparisons can be made between jobs performed by men and women in different places or enterprises, or for different employers, in order to give full expression to the principle of the Convention. It asks the Government to provide information on the measures taken to raise awareness of labour inspectors, judges, prosecutors, and other relevant officials on the principle of the Convention, in particular concerning the scope of comparison, and to provide a copy of any relevant judicial or administrative decisions.

Article 2(2)(c). Collective agreements. The Committee recalls that section 492(2)(d) and (e) of the Labour Code provide that measures intended to promote gender equality and non-discrimination, together with basic remuneration, are part of mandatory issues to be covered by collective agreements. Section 479 of the Labour Code further provides that the CITE shall review all collective agreements after their publication in order to check whether discriminatory clauses are included, and if so, invite the employer to amend such clause. Referring to its previous comments where it requested the Government to provide information on the number of agreements on remuneration reached through collective bargaining, the Committee notes that the Government merely refers to the adoption of two collective agreements containing general provisions guaranteeing equal remuneration for men and women for equal work or work of equal value. In that regard, the Committee draws the Government’s attention to section 57 of the CAP/SETAAB collective agreement (Labour and Employment Bulletin No. 17/2020), referred to by the Government, which is more restrictive than the principle of the Convention as it provides for “equal pay for equal work, without distinction of … sex.” In light of the important role that can be played by collective agreements in the application of the principle of equal remuneration for men and women for work of equal value, the Committee asks the Government to provide information on the measures taken, including in collaboration with the CITE, to raise the awareness of the social partners regarding the principle of the Convention, in order to encourage them to fully reflect it in collective agreements. It asks the Government to continue to provide information on the number of agreements on remuneration reached through collective bargaining, together with a summary of their provisions on wage determination and equal remuneration, as well as on any discriminatory clauses identified by the CITE, pursuant to section 479 of the Labour Code.

Article 3. Objective job evaluation. The Committee refers to its previous comments, where it requested the Government to provide information on the number of job evaluation exercises carried out in the public or private sectors, in particular in the framework of Law No. 60/2018, as well as in enterprises that have reported pay differentials between men and women in accordance with Resolution No. 18/2014. The Committee regrets that no information was provided by the Government in this regard. It recalls that: (1) section 31(5) of the Labour Code provides that job evaluation systems must rely on objective criteria common to men and women, in a way that excludes all forms of sex discrimination; and (2) Law No. 60/2018 imposes a duty for companies to have transparent pay policies based on the application of gender-neutral job evaluations. The Committee asks the Government to provide information on any measures taken to promote, develop and implement practical approaches and methods for the objective evaluation of jobs, in both the public and private sectors, based on criteria that are free from gender bias, such as qualifications and skills, effort, responsibilities and conditions of work, with a view to ensure the effective implementation of the principle of the Convention. It again asks the Government to provide information on the number of job evaluation exercises carried out in the public or private sectors, in particular in the framework of Law No. 60/2018, as well as in enterprises that have reported pay differentials between men and women in accordance with Resolution No. 18/2014, indicating the criteria used and the measures taken to ensure that men and women receive equal remuneration for work of equal value.

Awareness-raising and enforcement. Referring to its previous comments, the Committee notes that the CITE continued to raise awareness regarding equal pay for men and women, in particular through: (1) the launch of a new national campaign for equal pay “I deserve the same” (“Eu mereço igual”) in June 2019; (2) activities undertaken during the National Equal Pay Day; and (3) two assessment tools available on its website (self-assessment survey and gender pay gap calculator - calculator DSG) to enable companies to analyse pay structure and understand whether the pay differences are gender-based. It notes from the Government’s report on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), that, from January 2019 to May 2021, 385 complaints were received by the CITE of which only two related to pay inequality. The Committee also notes, from the statistical information provided by the Government, that, from 2017 to 2019, labour inspections were carried out by the Working Conditions Authority (ACT) in 73,973 establishments and 150 infractions concerning equality and non-discrimination were identified, of which only seven related to inequality in conditions of employment. Observing that no specific information is provided on any case of pay inequality identified by labour inspectors, the Committee notes the Government’s statement that no judicial decision was handed down on the issues covered by the Convention. In light of the very low number of complaints and cases concerning inequality of remuneration officially registered despite the persistence of the gender pay gap and gender stereotypes, the Committee asks the Government to provide information on any proactive steps taken, including by the CITE, to raise public awareness of the relevant legislative provisions, the procedures and remedies available. It asks the Government to provide information on the number of pay inequality cases dealt with by the ACT, the CITE, the courts or any other competent authorities, as well as the sanctions imposed and remedies granted.