Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Equal Remuneration Convention, 1951 (No. 100) - Brazil (Ratification: 1957)

The Committee notes the observations of: (i) the Single Confederation of Workers (CUT) received on 2 September 2022; and (ii) the International Organisation of Employers (IOE) and the National Confederation of Industry (CNI) received on 30 August 2022. The Committee requests the Government to provide its comments with respect to the observations of the CUT.

Article 2(2)(b) of the Convention. National minimum wage. The Committee welcomes the adoption of Law No. 14.358 of 1 June 2022 which increases the rate of the minimum wage at BRL 1,212 (compared to BRL 954 in 2018). It notes however that, in 2019, the Brazilian Institute of Geography and Statistics (IBGE) estimated that approximately 60 percent of workers had incomes below the minimum wage. The Committee considers that, as women predominate in low-wage employment, and a uniform national minimum wage system helps to raise the earnings of the lowest paid, it has an influence on the relationship between men’s and women’s wages and on reducing the gender pay gap (see 2012 General Survey on the fundamental Conventions, paragraphs 682-685). The Committee asks the Government to provide information on :

• (i)the measures taken to ensure the effective enforcement of the national minimum wage as well as any obstacles encountered in practice in particular in sectors in which women predominate; and
• (ii)statistical information on the percentage of women and men who are paid the national minimum wage.

Articles 2(2)(c) and 4. Collective agreements and cooperation with social partners. The Committee notes the Government’s indication, in its report, that collective bargaining is widely used for setting minimum wages and determining levels of remuneration for occupational categories while taking into consideration regional disparities and local context. Recalling the important role of workers’ and employers’ organizations, the Committee asks the Government to provide information on:

• (i)any provisions of collective agreements supporting the implementation of the principle of the Convention; and
• (ii)any other measures taken to promote, in cooperation with the social partners, the principle of equal remuneration for men and women for work of equal value.

Article 3. Objective job evaluation. The Committee notes with regret the repeated lack of information provided by the Government on the promotion and use of objective evaluation methods. In light of the persistent gender pay gap and lack of legislative provisions fully reflecting the principle of the Convention and referring in this regard to its observation, the Committee wishes to draw the Government’s attention to the fact that the effective implementation of the principle of the Convention requires some method of measuring and comparing the relative value of different jobs held by men and women, through an examination of the respective tasks involved, undertaken on the basis of entirely objective and non-discriminatory criteria, such as skills, effort, responsibilities and working conditions, in order to avoid the assessment being tainted by gender bias (see 2012 General Survey on the fundamental Conventions, paragraph 695). The Committee again asks the Government to provide information on the 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.

Monitoring and enforcement. The Committee notes that section 461(6) of Consolidation of Labour Laws (CLT), as amended by Law No. 13.467 of 2017, establishes a penalty of a fine for cases of pay discrimination based on sex or ethnicity. It further notes that, in their observations, the CNI and the IOE consider that such mechanism constitues a remedial measure, which together with the other national practices implemented, ensures that companies are concerned about non-discriminatory treatment. The Committee notes that a Bill (P.L. 10.158/2018) is being examined to further amend section 461 of the CLT in order to enable: (1) the labour inspectorate to directly impose an administrative fine on employers in case of pay discrimination; and (2) the Ministry of Labour to elaborate and publish a list of employers where pay discrimination has been observed. The Committee welcomes the summary information provided by the Government on several judicial decisions related to the principle of the Convention handed down in 2019 and 2021. It observes however that, as acknowledged by the Government, the initial onus of proof for demonstrating that functions performed are identical is on the worker, and then secondly, in response, the employer would explain why remuneration is not equal. The Committee asks the Government to provide information on:

• (i)any proactive measures taken in order to raise public awareness of the principle of the Convention, and of the procedures and remedies available;
• (ii)the number of labour inspections carried out and pay inequality cases between men and women dealt with by the competent administrative and judicial authorities, the sanctions imposed and remedies granted;
• (iii)any measures envisaged to consider the possibility of shifting the burden of proof in pay inequality cases once the plaintiff has provided prima facie and plausible evidence of pay inequality; and
• (iv)any progress made in the adoption of the Bill (P.L. 10.158/2018) with a view to amending section 461 of the Consolidation of Labour Laws.