Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Equal Remuneration Convention, 1951 (No. 100) - Malaysia (Ratification: 1997)

Articles 1 and 2 of the Convention. Application in law and practice. The Committee has been commenting for a number of years on the fact that the Constitution, the Employment Act and the National Wages Consultative Council Act 2011 do not reflect fully the principle of equal remuneration for men and women for work of equal value. The Committee notes that the Government in its report once again reaffirms that the principle of the Convention is enshrined in article 8 of the Constitution, the National Wages Consultative Council Act 2011 and other relevant labour legislation. The Government further reiterates that rates of remuneration are determined through market forces, the minimum wage legislation and collective bargaining, and that workers’ and employers’ organizations are giving effect to the principle of the Convention. Moreover, according to the Government, periodic inspections at workplaces are undertaken to ensure that men and women are paid equally for “the same job”. The Government does not, however, provide information to indicate that the legislation is interpreted to apply the broader concept of work of equal value, or that the principle is applied in the context of collective bargaining. The Committee also notes from the Salary and Wages Survey Report 2013 (Department of Statistics, Malaysia, August 2014) the continuing gender wage gap, which for certain occupations amounts to almost 30 or even 40 per cent. At the industry level, the gender wage gap in real estate activities is 36.5 per cent; it is 30.1 per cent in accommodation and food and beverage service activities; and 25.3 per cent in manufacturing.

The Committee once again recalls that the concept of “work of equal value” set out in the Convention allows for a broad scope of comparison going beyond equal remuneration for “equal”, “the same” or “similar” work, and encompasses work that is of an entirely different nature, but which is nevertheless of equal value (see General Survey on the fundamental Conventions, 2012, paragraph 673). It also recalls that the fact that the wage is mutually agreed upon between the worker and the employer by no means excludes the occurrence of pay discrimination. The Committee further emphasizes that “value” in the context of the Convention also indicates that something other than market forces should be used to ensure the application of the principle, as market forces may be inherently gender-biased (see General Survey, 2012, paragraph 674). In the context of the continuing gender pay gap and the occupational gender segregation previously noted by the Committee, as well as the persistent misunderstanding of the meaning of the provisions of the Convention, their scope and their application in practice, the Committee considers that giving full legislative effect to the principle of equal remuneration for men and women for work of equal value is of particular importance to ensure the effective application of the Convention. The Committee therefore asks the Government to take specific measures, in consultation with employers’ and workers’ organizations, as follows:

• (i) to review the legislation, with a view to incorporating expressly the principle of equal remuneration for men and women for work of equal value, taking into account that equality must extend to all elements of remuneration as defined in Article 1(a) of the Convention;
• (ii) to take steps to increase the ability of judges, labour inspectors and other relevant public officials to better identify and address issues related to equal remuneration for men and women for work of equal value;
• (iii) to take appropriate measures to raise awareness among workers, employers and their organizations, as well as public understanding of the concept of “work of equal value” and the principle of the Convention; and
• (iv) to provide information on any steps taken and results achieved regarding these points, including collective bargaining agreements which give effect to the principle of equal remuneration for work of equal value.

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