El Derecho a la Igualdad Salarial: ¿A Trabajo Igual Salario Igual o a Trabajo de Igual Valor Salario Igual?

Abstract

In social states of law, the notion of equality (which in liberal states was merely formal) is intended to be brought into the material realm. This material concept of equality has inspired Labor Law from its beginnings, in two dimensions: vertical and horizontal equality. The first seeks to reduce as much as possible the proverbial asymmetry that exists between employer and employee, and to achieve this, it limits contractual autonomy through mandatory legal norms (labor statute) and collective bargaining. The second recognizes equal treatment and opportunities for all workers, without distinguishing them based on the intellectual or manual nature of their work, their gender, or the form of compensation. In this last area, two postulates have been formulated: 'equal pay for equal work' (TI) and 'equal pay for work of equal value' (TIV). The first requires equal wages when two workers perform the same job, while the second demands equality when their occupations are not only the same but also of equal value. TI is suitable for addressing direct wage discrimination based on race, gender, age, etc.; TIV is suitable for combating indirect wage discrimination (which is more frequent and occurs when a seemingly neutral measure or policy adversely impacts a group of people, such as women), unless objective and proportional reasons for different treatment can be demonstrated. For this reason, the TIV principle has been established in international, supranational, and many national regulations. In Colombia, for many years—since the 1930s—it has prevailed in practice (and continues to do so) the principle of 'equal pay for equal work,' despite the fact that, with the enactment of the 1991 Constitution, ILO Convention 100 (which enshrines the TIV principle for men and women) is part of the constitutional block. Therefore, it is asserted here that the TIV principle prevails in Colombia and that, as a result, the state must issue, within the framework of a public policy proposed here (aimed at implementing such a principle), regulations that are consistent with it, not as has happened so far—regulations that are inconsistent with it