Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

Equal Remuneration Convention, 1951 (No. 100) - Germany (Ratification: 1956)

1. The Committee notes the information and explanations provided in the Government's report concerning the narrowing of the gap between the average earnings of male and female workers. The Government states that the difference in earnings may be due to various reasons, including lower occupational qualifications, a limited range of occupational choices, employment in low-paid branches, shorter length of service with the enterprise, shorter working time, less overtime, interrupted career due to family responsibilities, fewer promotion opportunities, less shift work and earlier retirement from employment. The Committee asks the Government to supply whatever data may be available which show that any of the suggested reasons do, in fact, explain part of the wage disparity. In this regard, the Committee also notes the statement made by the German Confederation of Trade Unions (DGB) in the Ninth Report of the Federal Government on equal pay (Report to Parliament No. 12/4033) commenting on the phenomenon of indirect wage discrimination. The DGB observes that the elimination of diverse forms of wage discrimination against women is a task for society of such magnitude as to far exceed the scope of the setting of standards through collective agreements. The DGB states that this task will require action in the legislative and political spheres in many areas, such as education, social insurance and family policy, the promotion of women and employment policy, with the aim of affording equal jobs, earnings and life opportunities and the possibility of reconciling work and family responsibilities for women and men. Noting the DGB's proposal that the federal Government prepare a report covering all forms of job discrimination against women, the Committee requests the Government to indicate whether such action might be contemplated, in order to tackle all of the real causes of the wage gap more effectively in future policies and programmes.

2. The Committee requests the Government to indicate the outcome of the discussion of the above-mentioned Ninth Report in the plenary session of the federal Parliament, which had not taken place at the time the Government submitted its report. The Committee also requests the Government to furnish copies of the next report on this subject.

3. The Committee notes with interest that the Federal Labour Court ruled, in October 1991, that section 1(3), No. 2, of the Continued Payment of Wages Act (which bars workers from any claim to the payment of wages during a period of incapacity if the employment relationship does not involve more than ten hours of work per week or 45 hours per month) amounts to indirect discrimination in that it affects considerably more women than men and is not justified by objective factors. The Committee requests the Government to indicate the measures it has taken to amend the Continued Payment of Wages Act to bring it into line with this decision.

4. The Committee also notes with interest that the Federal Labour Court ruled, in September 1992, that where men and women employees perform the same work, and almost one-half of the men but only one-tenth of the women are paid above the standard rate, this constitutes an infringement of section 612(3) of the Federal Civil Code, if the higher remuneration paid to men is not justified by factors unrelated to sex. The Court stated that prima facie evidence, which would shift the burden of proof onto the employer and suggest that a group of workers is adversely affected because of their sex, is present if a considerably higher proportion of one sex than of the other is adversely affected by a provision and if the criteria adopted in the employer's remuneration policy are not transparent. A ruling of December 1992 also involving indirect discrimination against women concerned the case of a woman working 20 hours per week who also had been denied reclassification to a higher grade on the ground that she had not carried out the requisite six-year probationary period, as required by the relevant collective agreement, because of her reduced working hours. The Federal Labour Court ruled that for indirect sex discrimination to exist, it must be shown that the provision in question places one sex at a serious disadvantage, and this is possible only if the proportion of that sex which is placed at a disadvantage is significantly higher than the proportion which is favoured by the provision. According to the Court, it remains undecided whether it is also a criterion of indirect discrimination that the disadvantage suffered by individuals of one sex can only be explained by their sex or gender roles. The Committee requests the Government to continue to furnish copies of decisions relevant to the application of the Convention and to indicate, where appropriate, the steps taken to ensure that any such rulings are brought to the attention of the workers' and employers' organizations.