The EEC as
champion of
women's rights?
1992 is heralded as the great opening up of the European Community as a truly "Common Market" with the abolition of frontiers as an obstacle to the free flow of goods and money. The prospect of this unbridled capitalist competition has provoked a discussion in the labour movement about the need for Community-wide social legislation to protect workers from its deleterious effects: "At present, there are no plans to introduce social legislation to accompany the economic opening up of Europe. As such, the attractions and benefits of the single European market are slanted towards business, with no mention of the rights of workers and their unions to be informed, consulted and able to negotiate". (Labour Research, London, 1988.)
The original Charter of the European Economic Community, the Treaty of Rome, adopted in 1957, contained a chapter of "social provisions"
It was seen as necessary to take some action to cushion the effects on workers of the kind of economic restructuring envisaged in the formation of the Common Market; and second, because the objective of greater labour mobility in Europe required the opening up of a national welfare schemes to workers from other members states. ...The main rationale for all of this was economic...These provisions in the Treaty of Rome are termed
"social policy, but they are in effect an employment policy and they deal only with the situation of people at work. Responsibility for all other aspects of life is considered to be the prerogative of the national state. (Catherine Hoskyns, Marxism Today January
1987.)
106 International Marxist Review
Among these "social provisions" is Article 119 of the Treaty of Rome which specifies that within the member countries of the European Community men and women shall receive equal pay for equal work. Article 119 is the only article in the Treaty which is framed as being directly applicable, taking precedence over national law. This clause was also introduced to prevent the member countries with a low-paid female workforce undercutting the labour costs of other member countries. In particular, "France considered itself to be far in advance of its partners on the question of equal pay, and feared that this would distort competition." (Social Europe Supplement February 1986.)
In 1974 the Council adopted a resolution "concerning a social action programme, aimed at making it possible to harmonize living and working conditions while the improvement is being maintained and at achieving a balanced social and economic development of the Community, recognized that priority should be given to action taken on behalf of women as regards access to employment and vocational training and advancement, and as regards working conditions including pay." (From the Council Directive 1975.) What has the European Community done for women? Through the experience of the obstacles encountered in implementing Article 119 and on the basis of the 1974 resolution, the EC developed a series of directives and other regulations which set out to specify how the forms of discrimination which so often put women in a situation where they will not be doing a comparable job to a man's should be eliminated.
These Community regulations cover the position of women at work: pay, conditions, training, maternity rights. These points were covered in the three "women's directives" of the 1970s:
• Pay: In February 1975, the Council adopted a directive which stated that the principle of equal pay should be applied to the same work or for work to which equal value is attributed. In line with this the job classification system was be the same for women and men and exclude discrimination. This was to be implemented by legislation within one year by all the member countries.
• Equal treatment and conditions:In 1976 the Council adopted a Directive defining the principle of equal treatment, which means that there shall be no discrimination on the grounds of sex either directly or indirectly by reference in particular to marital or family status, and also indirect discrimination. This equal treatment is also to apply to access to employment and promotion and vocational training as well as working conditions.
However, certain occupations which because of their inherent character can
be only carried out by workers of one sex can be excluded from these provisions. These exclusions are left to the discretion of the members states. Positive action, to promote equal opportunity by rectifying existing inequality, is not contrary to equal treatment in the terms of the Directive.
• Equal treatment in social security matters 1978 (to come into effect on 21
December 1984). This directive specified equal treatment in state social security schemes for all those in the active population in relation to sickness, invalidity and retirement. It covered neither occupational schemes nor widows'
It also gave the member states large scope for determining exceptions to these provisions on retirement age for eligibility for pensions, social advantages concerned with the education of children, the rights to retirement or old age pensions as rights derived from a spouse. However exceptions may not be made for increased allocations where there are dependent children in all areas or
As in the "equal treatment" directive, equal treatment means no discrimination on the basis of sex, either directly or indirectly by reference to the marital
A further directive concerning equal treatment in social security was adopted in 1986, while the scope of the equal treatment directive and the protection of pregnant women and mothers was extended to include self-employed women
The European Commission has also adopted two Community Action Programmes for eliminating discrimination against women. The stated aim of these programmes is to: strengthen the rights of the individual as a way of achieving equal treatment" and "the achievement of equal opportunities in
The first programme from 1982-85 listed 16 areas of action covering five
• implementation of existing Community Directives on equal treatment for
• preparation of additional provisions and extension to new sectors;
• preparation for working life, initial and continuing training;
At the close of this programme, a second programme (1986-1990) was family or children's benefits.
for spouses for illness and unemployment benefit.
or family situation.
in 1986.
The Positive Action Programmes practice"
main areas:
women;
• improvement in the quality of life.
The EEC as champion of women's rights? 107
• improvement in living and working conditions;
• consolidate rights under Community law, particularly by improving the application of existing provisions and adopting the proposals under
• follow-up and develop action launched under the 1982-85 Action programme, in particular the network for contacts and exchanges which represent a new form of social dialogue in this area, and which have made a very posi-
• intensify efforts to involve all those concerned through a broader dialogue and a consciousness-raising campaign aimed at the people involved and at a
• develop and intensify support for specific actions, in particular those
• develop and adopt such action, in particular with regard to the most vul-
• examine the situation in the new Member States of the Community.
What have been the results of this programme of legislation and action by the
EC? A report written for the commission in 1987 (The Application of the
Equality Directives, Commission of the European Communities, Luxembourg) provides much interesting information on the inability of the European Commission, even within the framework it sets itself, to introduce real
The report starts by underlining the continuing sex segregation of the workforce and indirect discrimination as two decisive elements in women's situation in the workforce which have not been changed, and which, particularly in the latter case, have very often not been addressed by the legislation in the dif-
The report points out the following as the most frequent forms of indirect a) Unjustified conditions for access to certain jobs or promotion [for example age limits or physical criteria (strength, height, etc) or an unbroken period b) conditions which encourage segregation and force women to accept more c) remuneration based on a hierarchical mode of calculation;
d) evaluations of different types of jobs which attribute less value to tradi-
108 International Marxist Review examination;
tive contribution;
wider target public;
intended to develop women's employment;
nerable and/or disadvantaged categories;
What are the results?
changes in women's situation at work.
ferent countries.
discrimination:
of employment] which militate against women;
badly-paid jobs;
adopted. The aims of this latter programme are to:
The EEC as champion of women's rights? 109 tionally "feminine" factors [such as dexterity compared to the "male" attribute of physical strength] leading to lower wages.
Another particular context of indirect discrimination is in part-time work which is much more widespread among women than it is among men. Part-time workers often have less benefits and protection than full-time workers, and so this means that a larger percentage of women workers suffer from worse conditions.
Perhaps most damning for the efforts of the EC, the report points out that "the difference that exists between women's and men's average wages... varies in the member states, but women earn on average between 25 and 40% less than men"! In other words, more than thirty years after adopting the principle of equal pay, the Community's efforts have contributed only marginally, if at all, to reducing the gap, which is, moreover, increasing in some countries such as the Irish Republic.
While the use of Community legislation and procedure has made it possible for some individual women to win equal pay, it is obvious from what is said above in relation to segregation of the workforce and indirect discrimination that the problem of wages is far from being solved. Within the framework of the "equal pay for equal work or work of equal value" notion, all depends on the comparisons made. Most of the national legislation is very restrictive on this, only Italy allowing comparison between one industry and another.
Furthermore, the legislation that does exist applies to those workers covered by an employment contract, which obviously excludes home-workers and thus proportionally more women than men.
It is striking to read in this report that:
There seems to be a particular tendency, in several member states, to treat the employees of the public administration in a different way. In the Netherlands for example, the law on equal pay does not concem the public sector. This is covered by a separate law which cannot give the same degree of protection. In Greece, the recent legislation putting into execution the Equality Directives does not seem to concern the public sector at all. In
Luxembourg the armed forces and the police are excluded. There are several important exceptions from this protection in the Belgian public administration.
When we know large numbers of women tend to work in the public administration, and particularly in the lower clerical ranks, it is not difficult to see the importance of these exceptions in determining the situation of large sections of women workers.
A further exclusion from the scope of these laws is for those jobs which are covered by "protective legislation". It is obviously hypocritical for governments, out of pretended concern for the health and "quality of life" for women, to legally prevent them from taking certain jobs, and then, because they can-
110 International Marxist Review not take those jobs, deny them the right to decent rates of pay and equal promotion chances. However, for the much-vaunted Positive Action Programmes, the report itself points out "positive action measures have been taken only rarely if at all, which leaves immense possibilities in this field". What are the immense possibilities suggested by the report: codes of good conduct and employers' programmes to "discover and overcome the sex prejudice in their personnel policy and practice"!
After these two possibilities the report goes on to detail the way in which measures that would attempt to eliminate the present distortions of the labour market would be considered illegal in West Germany, or how special training programmes exclusively for women would be illegal in Italy. And only in Denmark have special training programmes destined to overcome domination of particular fields by one sex begun to be introduced, with a special importance given to training women in the engineering and technological professions.
The mechanisms intended to oversee the application of these measures also turn out to be inadequate. Only in two countries, the Irish Republic and Britain, are there specifically created bodies to oversee this. In most countries, only an individual directly concerned can start the procedure of complaint and request a judgement that will have the force of legal precedent. Trade unions, women's and civil rights organizations cannot take up cases except in France. In general, except for Britain where there are special tribunals, these cases are heard by ordinary courts with no special training in employment or antidiscriminatory legislation. Even where a complaint is found to be justified, the complainants very often are simply given a financial compensation for "injury to feelings" or to career prospects. The American notion of a "class action suit" whereby a complaint can be made by an individual on behalf of all persons in a similar situation, and thus obtain a ruling that applies to all of them, does not exist. The report itself recommends that the burden of proof should be transferred to the employer to prove that there was no discrimination, although with the proviso that the complainant should prove she is entitled by the law to make the complaint!
To summarize the essential points of the EEC approach on the question of women's rights, we see: • The EC started by dealing with the effects of the discrimination that women suffer, their low pay. • It excludes from its field of legislative activity anything other than the
The EEC as champion of women's rights? 111 situation of women at work • Measures that could begin to change the structural situation of women, the segregation of the workforce, are very often impossible to implement because of national legislation. • Governments are given the possibility of making "exceptions" to the legislation. • The burden of trying to ensure the implementation of the legislation where it is applicable rests on individuals without even a guarantee of the desired solution that is forcing the employer to rectify the discriminatory practice. • The elimination of discrimination in relation to social security has often been used by governments as a cost-cutting exercise to reduce benefits in general. • These provisions do not address many of the questions raised by women themselves in their own activity in different social or political movements, for example on the question of violence (except, marginally, the question of sexual harassment at work). Women's organizations, trade unions etc. are considered as an audience for information rather than a source of information, opinion and means of action. We pointed out at the beginning of this article that the responsibility for other aspects of life, other than at work, is considered to be the "prerogative" of the national state. The positive action programmes have promoted campaigns of "sensitivization" starting in schools. A draft directive on parental and family leave exists, although its adoption is blocked by the objection particularly of the British government. The problem of childcare is raised. However, the key issues of abortion and contraception, the provision of which vary enormously in the twelve countries, are not even mentioned. The different reports commissioned by the European Commission often point to the failures and dilatoriness of the different governments to implement the legislation, yet the problem of the striking under-representation of women in all these national governments does not figure anywhere. Nevertheless, the European legislation has on certain occasions provided a basis for limited improvement for some women. For example there is a precedent-setting British case of a woman working as a cook for the Cammell Laird shipbuilders who was able to use the provision of "equal pay for work of equal value", which had been amended into the legislation in 1983 in line with the European directive, to claim equal pay with male painters, joiners and engineers of the same employers. Under the original 1975 Equal Pay Act this claim could not have been made.
112 International Marxist Review
What has led sections of the bourgeoisie to try to improve the job situation of women in a period of deepening crisis? The only coherent response is to search in the needs of capitalism today. The OECD 1988 report "Employment Outlook" reported that in some areas there were now real labour shortages because of the lack of appropriately skilled and trained workers. Although women's participation in the workforce has increased substantially, it pointed out that their contribution is not fully developed. (Financial Times 23 September 1988.)
Employers need flexible, cheap and qualified workers. The subsidies of the EEC for positive action programmes, helping them to recruit and train women, as well as the prestige which the firms derive from these, are welcome.
The IBM head of personnel in Belgium explained their interests very clearly: Since 1975 there is a person responsible for equal opportunities. The management has a business goal of equal opportunity and this is certainly not for altruistic reasons, but because of the evolution of business itself. Soon 50% of our clients will be women and we should not wait for this moment to arrive but do something now. The number of women in the labour market is increasing, as well as the number of highly-qualified women.
If we cannot attract them we will ignore a large section of the labour market, we must use all the work potential.
LAURENT CARASSO