Implementing Equal Pay for Work of Equal Value 
in Hong Kong: A Feminist Analysis

By Carole J. Petersen

I.	Introduction
Ever since women entered the labour force, they have been paid less than men. Originally, unequal pay was an express policy.  For example, in Hong Kong, the Salaries Commission of 1947 stated that the salary of a female civil servant should be approximately 80% of a male officer doing comparable work. This was not based upon evidence that women were less productive than men, but rather on the assumption that women did not need to earn a “living wage”, as their husbands were supporting the family.  Employers and policy-makers (who were almost always men) were also very likely motivated by the belief that women should earn less than their husbands, viewing the alternative as a threat to the traditional balance of power within the family.
Hong Kong did not formally reject the practice of paying women less than men until fairly recently.  Equal pay and benefits for female civil servants were not fully achieved until the 1980s.  In the private sector, sex discrimination was perfectly lawful until December 1996.  Sex-specific job advertisements (e.g. for “male engineers” and “female clerks”) were common and demonstrated that our labour market was sexually segregated, both horizontally (in that certain industries were largely closed to women) and vertically (in that managerial posts were more likely to be reserved for men, even in industries that employed primarily women).   
Fortunately, the discriminatory advertisements have finally disappeared, due to section 43 of the Sex Discrimination Ordinance and vigorous enforcement by the Equal Opportunities Commission.  But it would be naive to assume that the attitudes that led employers to place sex-specific advertisements have magically disappeared, only a few years after the legislation came into force.  Common sense tells us that hiring, promotion, and compensation decisions are still influenced by sexist notions.  It will take years of education and enforcement of the legislation to overcome the effects of this historical pattern.  
This paper considers the concept of “equal pay for work of equal work” (also known as “comparable worth” and “pay equity”), as a tool to redress the gender pay gap.  Part II considers the evidence that discrimination causes traditionally female positions to be underpaid and the potential for comparable worth to address that phenomena.  Parts III and IV analyze the existing legislative framework in Hong Kong.  I argue there that Section 11 of the Sex Discrimination Ordinance (which broadly prohibits discrimination in the terms of employment) already prohibits comparative worth discrimination in certain circumstances.  However, the Code of Practice on Employment has introduced confusion as to when employers should implement comparative worth policies and it is not being actively pursued (either by employers or employees) at this time.  I argue that the Code of Practice should be amended and the Equal Opportunities Commission should actively study whether traditionally female jobs are being devalued in Hong Kong as a result of discrimination. 

II.	Comparative Worth Discrimination 
In the campaign to achieve equality for women, one of the most important goals should be to eliminate the gender pay gap.  Research in other jurisdictions has shown that a significant cause of the gap in male-female earnings is the fact that women have been segregated into certain positions, which have been devalued precisely because they are considered “female job”.  Nurses, librarians, elementary school teachers, speech therapists, and clerical workers are examples of workers who have been found to suffer a wage penalty because they work in female-dominated professions. For example, in 1980 the City of San Jose (California) commissioned a study of its wage scheme and found that female-dominated jobs were paid 15-25% less than comparable male-dominated jobs.  Some of the more glaring inequalities were published in the local press, including:
�{	a nurse earned $US 9,120 (about $HK 70,000) less per year than a fire truck mechanic;
�{	a senior librarian earned $US 5,304 (about $HK 40,000) less per year than a senior chemist;
�{	a legal secretary earned $US 7,288 (about $HK 56,000) less per year than an equipment mechanic;
�{	secretaries generally were paid less than men in positions that required only an 8th grade education (including men who washed the city’s cars).
Similarly, nurses in Denver found that they were paid less by the city government than tree trimmers, despite the fact that nurses were required to have much higher education for their jobs. The City of Philadelphia paid practical nurses (mostly women) less than gardeners (mostly men).   These are just a few examples of the many cases in which job evaluation studies have found that female-dominated jobs were underpaid, to an extent that simply could not be justified by non-discriminatory factors.  In contrast, “one is hard pressed to come up with a single example of a male job paying less than a female job that reasonable people would find comparable in skill, effort, or difficult working conditions.”
Neo-classical economists often argue that differences in female wages can be explained by differences in their commitment, education, experience or other “human capital”. However, when these theories are actually tested, they do not fully explain the gender pay gap.  A recent review of the research concluded:
[M]uch of the human capital theory simply does not withstand scrutiny.  The gender-pay gap cannot, it seems, be explained by reference to women’s lack of education, skills, or commitment to the world of paid employment.  In the first place, the theorized relationships appear to depend mainly on assumptions about women’s work than on hard evidence.  Secondly, human capital theories fail to explain the abundant evidence that, skills, education, training, labour market experience, etc. held constant, men still earn more than women.  
Similarly, research by the International Labour Office found that even when female-dominated occupations “involve the same skill, effort, responsibility and working conditions as the male-dominated jobs, they tend to pay less than the male-dominated jobs.”  A 1999 review of several different studies concluded that the sex composition of an occupation or job category exerts a net effect on its wage level after other factors are accounted for.  Thus we should be wary of claims that the gender pay-gap in Hong Kong can be explained away by non-discriminatory factors.  The Hong Kong government tried to assert this view in 1992 (in the unsubstantiated Findings of the “Inter-departmental Working Group on Sex Discrimination”) and again in 1993 (in the Green Paper on Equal Opportunities for Women and Men).  However, the government eventually conceded that it had made this assertion without having done any real research on the causes of the male-female earnings gap in Hong Kong.  
Economists who concede that the gender pay gap is at least partly caused by discrimination often maintain that the root of the problem is hiring discrimination rather than pay discrimination.  They argue that because employers refuse to hire women for traditionally “male” jobs, women are pushed into traditionally “female” jobs, creating an excess supply of women for these jobs and lowering wages by the normal forces of demand and supply.   However other researchers have concluded that this “crowding effect” is not the major cause of depressed wages in female jobs. Rather, they maintain that traditional discriminatory attitudes about women’s abilities and the contribution they make to an organization leads to a devaluation of their work. Thus, there is a tendency to pay a job less simply because women are in it “whether because of a cognitive mistake about the skill requirement or contribution to profit of the job, or because of believing women need or deserve less money than men.”  Once wages are set in this biased way, women are placed on a lower pay scale than men and institutional inertial perpetuates the error.
While some economists argue that market forces alone will eliminate these attitudinal prejudices (because such prejudices are inherently inefficient), others believe that this is an overly-optimistic view. Indeed, if market forces could eliminate employers’ bias against women, why was it necessary to enact legislation in order to stop Hong Kong employers from advertising for “male engineers” and “female clerks”?  Obviously the employers who were placing those ads (as recently as 1996) are motivated by prejudice -- prejudice that is stronger than any desire to maximize profits by attracting the best people.  Economists have also acknowledged that employers may exclude women from certain positions because they are “willing to sacrifice profits to maintain the morale” of those male workers who oppose the hiring of women.  
The principle of “equal pay for work of equal value” (often referred to as “comparable worth” or “pay equity”) was thus developed as a means of addressing the problem directly, by revealing and removing the wage penalty for female jobs.  Essentially, this principle provides that sex discrimination includes not only a situation in which a woman is paid less than a man in precisely the same job, but also a situation in which a woman is paid less than a man performing a different job that is comparable in terms of education, skills, working conditions and other factors.   I will refer to this situation as “comparable worth discrimination”.
Proponents of pay equity see it as a necessary complement to legislation that prohibits sex discrimination in hiring.  Even with effective enforcement of our Sex Discrimination Ordinance, it will take time to desegregate the labour market.  In order to do so, we need to change not only the attitudes of employers but also the attitudes of educators (who unfortunately still discourage Hong Kong girls from pursuing highly paid male-dominated careers).  Moreover, the gradual desegregation of the labour market will not necessarily help those women who are already employed in devalued female-dominated positions.  
As noted above, there have been several publicized cases in the United States in which employees have succeeded in obtaining pay increases through the principle of comparable worth.  By 1989, 42 states had enacted laws “mandating some data collection on the equity of their pay structures for state employees, 21 had done a formal pay equity study, and 20 had made some pay equity adjustments.”  National legislation requiring comparable worth has never been enacted in the United States, largely due to resistance from the Reagan/Bush republican administrations, the religious right, and neoclassical economists (such as Mark Killingsworth) who see it as a violation of the free market.   However, certain public employees are covered by individual states’ comparable worth policies or legislation.  A leading example is the state of Minnesota, where job evaluations revealed numerous situations in which female jobs were paid less than male jobs although the jobs received equivalent or higher points on the evaluation scale.  (For example, women who cared for disabled children were being paid less than male zoo keepers.)   The legislature enacted the State Employees Pay Equity Act and significant adjustments were made.  While some researchers have criticized various elements of the Minnesota programme, others argue that it has been a success overall and has made a significant contribution to gender equality.  It should also be noted that many American employees who are not covered by comparable worth legislation have, nonetheless, used non-legislative mechanisms (such as collective bargaining and union activity) to persuade employers to make pay adjustments to female dominated jobs that were paid less than comparable male-dominated positions.   As one review concluded, “pay equity [in the United States] has done extraordinarily well as a reform policy, despite its very limited coverage”.  
Many other jurisdictions (including the United Kingdom, Canada, and Australia) have expressly included the principle of comparable worth in legislation and have actively implemented it through a variety of mechanisms.  There is a wide variety of opinions on the impact of these policies.  Certain economists focus on the negative aspects -- for example, they argue that raising wages in traditional female jobs may cause more women to seek such jobs (perpetuating the segregation of the market) while causing employers to hire fewer of them (creating unemployment).  However other economists argue that these negative elements are less significant than previously believed.  For example, Perlman and Pike maintain that comparable worth legislation can have “indirect or long-run effects that are likely to mitigate any negative employment effects.”  They also note that the knowledge that the employer is implementing a fairer wage structure will likely have a positive impact on morale of female workers and increase their productivity (thus offsetting any incentives for the employer to reduce female employment levels).  Comparable worth also may actually help to solve the underlying problem of sex-segregation of jobs as it gives employers an incentive to integrate positions that have traditionally been segregated (because they are far less likely to be held liable for comparable worth discrimination if their workforce is not segregated into “female” and “male” positions).
I have briefly reviewed these arguments primarily to demonstrate that there are different views among economists and other experts in the labour field regarding the potential impact of comparable worth legislation.  The Hong Kong community should carefully examine studies of experts on both sides of the debate.  In this light, I question the objectivity of the Feasibility Study on Equal Pay for Work of Equal Value.  It is my understanding that the Equal Opportunities Commission appointed the authors (Sung Yun-wing, Zhang Junsen, Ng Sek-hong, and Paul Hempel) to conduct this study.  However, the cover of the report also lists Mark Killingsworth as the “External Expert”.  In their final report, the authors thanked Professor Killingsworth for his advice and guidance, noting that the report drew heavily on papers written by him and that he had visited Hong Kong to offer suggestions on the study and the report.   As I have noted earlier in my paper (see note 20 above), Mark Killingsworth is well known in the United States as a staunch opponent of comparable worth legislation.  Therefore, when the authors of this Feasibility Study retained him as their guide and external expert, they essentially pre-ordained the result of the study, which was to oppose comparable worth policies.  Of course, Professor Killingsworth and the four authors are entitled to their opinion.  But the Equal Opportunities Commission cannot now rely on this study as an objective appraisal of the feasibility of implementing comparable worth in Hong Kong.  Rather, it should treat this study for what it is -- a strong statement of the arguments against comparable worth -- and seek experts on the other side of this important policy debate for the alternative perspective.  This is the only way that the Equal Opportunities Commission can achieve a balanced perspective on whether it should actively pursue equal pay for equal value as a policy goal in Hong Kong.
 It should also be noted that some of the critique of comparable worth legislation does not argue for its abandonment but rather for refining and strengthening the mechanisms through which it is enforced.  Hong Kong is in a position to benefit from these suggestions.  For example, substantial research has now been done on how to design gender neutral job evaluations (to ensure that the evaluation does not simply perpetuate the same prejudices that originally caused female jobs to be underpaid).  Similarly, in 1997 Aileen McColgan published a comprehensive review of UK, European Community, Canadian, and Australian approaches to pay equity.  She concluded that one of the current problems with the UK legislation is the fact that its enforcement depends almost entirely upon individual complaints, which are difficult to maintain and do not have any direct effect on other workers.  She recommended a much more collective approach to the issue, one in which the enforcement body would be proactive and address the systemic devaluation of female-dominated positions.   This suggests that the Hong Kong Equal Opportunities Commission could play an important role -- designing gender neutral job evaluation criteria, studying the pay scales of employers (particularly large institutional employers at the outset), and advising employers and employees.   The point is that there is a wealth of literature out there that does not reject pay equity but rather offers constructive criticism of the various mechanisms for implementing it.  If we study it carefully and objectively, we can develop mechanisms for implementing comparative worth that will be more advanced and more effective than those developed previously in other jurisdictions. 
We must also be careful not to reject the concept of comparable worth simply because it represents interference in the market (the primary objection of those economists who oppose it).   This same objection could also be made of many worker safety laws, laws against child labour, and laws that prohibit firing a female worker because she is pregnant.  Indeed, the entire concept of sex discrimination legislation was long opposed in Hong Kong by those who argued that it would be too interventionist.  But the community, the legislature, and ultimately the government rejected this position -- as demonstrated by the results of the Green Paper consultation exercise and the adoption of an enforceable Sex Discrimination Ordinance.  The question therefore is not whether comparable worth constitutes intervention in the market, but rather whether it is justified and worthwhile.
The next two sections analyze the provisions of the Sex Discrimination Ordinance relating to pay discrimination.  I argue that the Ordinance does already prohibit comparative worth discrimination in certain circumstances.  However, in the present situation (without any active implementation of the concept), the Ordinance will probably not have any significant impact on the tendency to devalue traditionally female positions.  

III.	Comparative Worth Discrimination: the Legal Position in Hong Kong
In 1995 Hong Kong enacted its first anti-discrimination law, the Sex Discrimination Ordinance.  As originally drafted by the government, the Sex Discrimination Bill prohibited discrimination in the terms of employment offered to applicants for jobs.  However it did not contain a provision prohibiting discrimination in the terms of employment for existing employees. This omission in the bill probably resulted from the fact that the government had essentially copied the UK Sex Discrimination Act 1975 (which does not apply to pay discrimination in employment contracts as this is addressed in separate legislation, the Equal Pay Act 1970).
The omission was pointed out to the government during the examination of the Bill by the Bills Committee.  At first the government suggested that the issue of equal pay should be left entirely to the Sex Discrimination Ordinance Code of Practice on Employment.  Indeed, it appears that the government expected the Code of Practice to borrow heavily from the UK Equal Pay Act, as the government added a provision to the Sex Discrimination Bill stating that a code of practice relating to discrimination in the terms of employment may make reference to and incorporate provisions from an enactment of a jurisdiction outside of Hong Kong.  However legislators also pressed the government to add a provision relating to equal pay to the Ordinance itself.  The government thus agreed to amend the Bill so that it would expressly prohibit discrimination in the terms of employment for existing (as well as prospective) employees.  
Discrimination in the “terms of employment” is a broad concept and in my view can be interpreted as requiring both equal pay for equal work and also equal pay for work of equal or comparable value.  Indeed, it is my understanding that the government has often taken this position.  For example, when legislator Christine Loh was drafting her bill to amend the Sex Discrimination Ordinance (which was enacted in June 1997), she wrote a letter to the government seeking clarification on the issue.  She noted that if the Ordinance were interpreted by the courts as providing less protection in respect of equal pay than is available in the UK, this result would be “contrary to the general understanding given the Bills Committee that studied the Sex Discrimination Bill.  The government replied as follows:
Although the Ordinance makes no reference to the notion of equal pay for work of equal value, in determining whether, say, a woman was discriminated against in terms of pay, the court would need to consider whether she was doing work of equal or comparable value to that of the man with whom she wished to be compared.  Whether the principles adopted under the UK Equal Pay Act would be followed in this respect would be a matter for the court to decide.
Thus the government’s expressed view was that that the Ordinance would allow a woman to sue for unlawful discrimination if she could prove that a male colleague performing “work of equal or comparable value” was being paid more than her without any non-discriminatory justification.  This is a perfectly sensible interpretation of the Ordinance: if a female employee is in comparable circumstances to a male employee (e.g. she has comparable qualifications, skills, and seniority, and is doing work of comparable value in comparable working conditions), but she is nonetheless paid less than that male employee then she can made a prima facie case of direct discrimination.  She would argue that the unequal pay scales constituted unfavourable treatment on the ground of sex -- that her job has been devalued by the employer because it is a female job.  Note that that the statute does not require the plaintiff to show that the employer intended to discriminate against women in order to prove direct discrimination. Moreover, Section 4 of the Ordinance expressly states that if an act is done for two or more reasons and one of the reasons is the sex of the plaintiff, then the act will be taken as having been done for that reason even if the sex of the plaintiff was not the dominant reason.  This provision (which is not in the UK Sex Discrimination Act) should make it easier for plaintiffs to prove direct discrimination. However, if the employer can demonstrate that the differential pay was not based upon sex (but rather on a non-discriminatory factor), then the different treatment may not constitute direct discrimination.
Alternatively, a case of indirect discrimination could be made where the female plaintiff alleges that a requirement or condition which appears to be gender neutral actually has a disproportionate detrimental impact on female employees  (e.g. because it is applied to jobs that are all or mostly female).   For example, if an employer requires all employees in female-dominated positions to serve longer or have higher educational qualifications in order to receive a certain pay rate, while allowing employees in male-dominated positions to move up to that pay rate with lesser requirements, then the requirements applied to the female jobs could constitute a prima facie case of indirect discrimination.   A requirement that employees must work full-time in order to receive a raise or a performance bonus (which would have a disproportionate impact on women) could also constitute indirect discrimination.
My interpretation of the Ordinance is consistent with Hong Kong’s obligations under the United Nations Convention on the Elimination of All Forms of Discrimination (CEDAW). CEDAW explicitly requires the right to equal pay, including the right to equal pay for work of equal value.  Article 11 states that State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment and in particular:
(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work.
The United Nations Committee on the Elimination of Discrimination Against Women (which considers the reports of State Parties to CEDAW) has also issued a General Recommendation urging State Parties to ratify ILO Convention No. 100 and to take action to ensure that the principle of equal pay for work of equal value is not only enshrined in legislation but also implemented in practice. 
The Sex Discrimination Ordinance does not contain a provision expressly stating that CEDAW must be interpreted so as to comply with CEDAW (and indeed the government successfully opposed amendments proposing such language). However, it is still a general rule of statutory construction that the legislature is presumed to intend to conform to public international law.  Where the terms of legislation are reasonably capable of more than one meaning, the terms of the relevant treaty become particularly relevant.  Thus, if “one of the meanings which can be ascribed to the legislation is consonant with the treaty obligation and another or others are not, the meaning which is consonant is to be preferred.”  When the Hong Kong government announced that it would propose a Sex Discrimination Bill it expressly informed the legislature that it was doing so in order to comply with CEDAW (which the government had by that time conceded would soon be extended to Hong Kong).  Moreover, the government has frequently cited the Sex Discrimination Ordinance as its principle means of implementing CEDAW in Hong Kong.  It should also be noted that although the government entered reservations to certain requirements of Article 11 (e.g. relating to pension schemes), it did not express any reservation to equal pay for work of equal value (which is also contained in Article 11).   Thus, the courts should interpret the broad language in Section 11(2)(b) of the Sex Discrimination Ordinance as complying with Article 11 of CEDAW and therefore prohibiting comparable worth discrimination. 
We should also consider Hong Kong’s obligations under the International Covenant on Economic, Social and Cultural Rights, which is now enshrined in Article 39 of the Basic Law.  This Covenant also recognises, in Article 7(a)(i), the right to just conditions of work, including “equal remuneration for work of equal value”.  In 1976, when the United Kingdom extended this Covenant to Hong Kong, it entered a reservation stating that it reserved the right to “postpone the application” of Article 7(a)(i) “in so far as it concerns the provision of equal pay to men and women for equal work in the private sector” in Hong Kong.  Of course, in 1976 this reservation was necessary, as Hong Kong had no sex discrimination legislation.  However, in 2000 (more than 20 years later) there is no longer any need to “postpone” the application of Article 7.  Moreover, the Hong Kong government has not taken the position that it wishes to postpone it.  Rather, in 1999, the government indicated to the United Nations Committee on Economic, Social and Cultural Rights that the Sex Discrimination Ordinance does prohibit comparable worth discrimination.  In language quite similar to that used in its letter to legislator Christine Loh, the government informed the Committee that:
The Sex Discrimination Ordinance outlaws sex discrimination in all areas of employment, including terms and conditions of work, recruitment, promotion, staff transfers, or training.  It is left to the Courts to determine whether, in a particular instance, the work taken by a female plaintiff is equal -- or of comparable value to -- that of a male colleague with whom she wishes to be compared.
Note that the government did not raise any doubt about whether the Sex Discrimination Ordinance requires equal pay for work of comparable value.  Rather it assumed that it does and stated that the court would simply need to determine the factual question of whether the work done by the female plaintiff is, indeed, of comparable value to the male colleague with whom she wishes to be compared.   
Given the broad language of Section 11 of the Sex Discrimination Ordinance and Hong Kong’s international obligations, a court may well interpret Section 11 so as to incorporate the concept of equal pay for work of equal value.  Of course, this is problematic in that the Code of Practice (which I discuss in the next section) introduces some confusion on this point. 
IV.	The Sex Discrimination Code of Practice on Employment 
As we all know, the government was in no particular hurry to bring the Sex Discrimination Ordinance and the Disability Discrimination Ordinances into force.  It declined to bring the employment provisions into force until the Equal Opportunities Commission had promulgated a code of practice on employment for each ordinance.   The government then took its time in establishing the Commission.  It did not even advertise the position of Chairperson until March 1996 (seven months after the legislation was enacted).  As a result, the first Chairperson, Dr. Fanny Cheung, was not appointed until May 1996 and the Commission was not staffed and operational until September 1996.   By this time more than a year had elapsed since the enactment of the two discrimination ordinances, and many people feared that the onerous job of drafting the codes of practice would require another year or more. However, the Commission worked very quickly.   The two codes were drafted and put though two rounds of consultation and amendments in less than six months. The Legislative Council endorsed both codes and the legislation came into force in December 1996.
As expected, the Sex Discrimination Code of Practice on Employment does borrow legal concepts from the UK Equal Pay Act.  After noting (in paragraph 12.1) that the Ordinance prohibits discrimination in the listed aspects of employment, the Code discusses employment terms and conditions in more detail under the headings “equal pay for equal work” (paragraphs 12.2-12.4) and “equal pay for work of equal value” (paragraphs 12.5-12.8).  The discussion of equal pay for equal work states that a female employee is entitled to equal pay when she is doing the same or like work as that of a male employee.  “Like work” is defined as “work which is of a broadly similar nature and where the differences between the tasks performed by either of them are not of practical importance to the terms and conditions of employment.”  This definition is borrowed from the UK Equal Pay Act. 
Paragraphs 12.5-12.8 then address the concept of equal pay for work of equal value.  Paragraphs 12.6 and 12.7 state (my emphasis added) that:
A related principle to equal pay for equal work is that of equal pay for work of equal value.  Where women undertake work as demanding as that of their male colleagues, even though the work is different, women should receive the same pay and benefits.  That is, jobs of equal value warrant equal pay.
. . . . Employers can set individual pay rates based on market forces and individual performance but should not pay a class of workers less for doing work of equal value on the basis of sex.
These paragraphs are consistent with the interpretation of Section 11 that the government suggested to legislators and to the Committee on Economic, Social and Cultural Rights.  That is, Section 11 of the Sex Discrimination Ordinance (which broadly prohibits discrimination in the “terms” of employment) permits a female plaintiff to sue for unlawful discrimination if she can demonstrate that she is paid less than a man doing work of equal value for the same employer without some nondiscriminatory justification. 
However, a later paragraph introduces confusion as to when employers need to comply with this duty not to pay female workers less for work of equal value.  Paragraph 12.8 states that:
[E]mployers should maintain the principle of equal work and are encouraged to progressively implement equal pay for equal value.  This will require objective and professional evaluation of different jobs within the same establishment, or alternative methods of approaching the issue of equal pay which can be demonstrated to be non-discriminatory.  Large organizations in both the public and private sectors with a structured human resources department could take a lead in this.  
This paragraph can be interpreted as indicating that while employers are required to implement equal pay for equal work, they are only encouraged to progressively implement equal pay for work of equal value.  In my opinion, this is potentially dangerous advice, because:
1.	the Ordinance itself does not distinguish between the two types of pay discrimination, but rather broadly prohibits sex discrimination in the terms of employment; 
2.	international treaties binding upon Hong Kong require “equal pay for work of equal value” and the courts should interpret the broad prohibition on discrimination in the terms of employment as complying with those treaty obligations; and
3.	the government has made statements to legislators and international treaty bodies indicating that the Ordinance does allow a woman to sue for discrimination if she can prove that a male colleague performing comparable work is being paid more than her without some nondiscriminatory justification.
Of course, in practice, it may be difficult for a female employee in Hong Kong to bring such an action at this time (because she would probably need a professional job evaluation of her position and that of the male colleague to whom she wished to be compared).  However, women working in female-dominated positions for large institutional employers may be able to obtain the necessary information.  For example, women in female-dominated positions in the government hospitals (e.g. nurses) may wish to investigate whether there are any male-dominated positions in the hospitals that receive higher salaries, despite the fact that the male positions are not particularly difficult to fill and do not require greater education, impose greater duties, or entail harsher working conditions.   
If such a complaint were filed, the employer might argue that the courts should (despite the three points I have noted above) adopt a narrow interpretation of Section 11 of the Sex Discrimination Ordinance, so as to require only “equal pay for equal work” (although the statute does not use that phrase).  However, if the defendant employer were the government or a public body, then I do not see how it could possibly argue in court for a narrower interpretation of the Ordinance than the government put forth to legislators and the United Nations Committee on Economic, Social and Cultural Rights.  Such a position would be extremely disingenuous and would leave the government open to enormous criticism before international treaty bodies.
It should also be noted that although the Code of Practice can be taken into account by the court if it is relevant to a question, it is not law and cannot have the effect of amending the Ordinance or delaying the obligations imposed there.  For example, if the Code of Practice advised employers to “progressively” eliminate sex-specific job advertisements, that advice could not over-ride the fact that such advertisements are already prohibited under Section 43 of the Ordinance. If there is an inconsistency between the Code and the Ordinance, then the Ordinance must prevail. 
The ambiguity created by the Code has not been lost on the United Nations bodies that review Hong Kong’s compliance with the international treaties that apply to Hong Kong.  For example, the Committee on Economic, Social, and Cultural Rights expressed concern on this issue and it was in response to that concern that the Hong Kong government made the comment that I quoted above indicating that a woman can sue under the Ordinance if a court determines that she is being paid less than a man who is doing work of “comparable value”.  However, the advice given in the current Code of Practice gives employers and employees the impression that equal pay for work of equal value is not required (thus discouraging employers from implementing it and discouraging employees from making complaints).  Clearly this situation cannot continue: it is not appropriate for the government to indicate to treaty bodies that Hong Kong law does require equal pay for work of equal value while the Code of Practice implies that employers can take some unspecified amount of time to comply with that law.

V.	Conclusions
I believe that paragraph 12.8 of the Code of Practice should be amended and that the Equal Opportunities Commission should develop mechanisms to assist employers to avoid unlawful devaluation of female dominated positions.  It should start by studying the pay scales of the Hong Kong government and public authorities (which I assume would be happy to cooperate with any effort to ensure that the Hong Kong government is complying with its own treaty obligations).  The Commission should also publish recommendations to all employers on how to remove gender discrimination in pay scales.  Large employers should be urged to do their own studies, to compare pay scales of female-dominated and male-dominated positions, and to eliminate discrimination.
Finally, I would argue that a pro-active approach to the gender pay gap is even more important in Hong Kong than in many other jurisdictions.  I say this because of the absence of strong unions and collective bargaining.  In many countries, unions (assuming that they are supportive of women’s right to equality) can compel employers to adjust pay scales that clearly devalue female-dominated positions.  But in Hong Kong the unions have far less power.  The right to collective bargaining was briefly expanded by the elected legislature (before the handover).  But this legislation was almost immediately frozen (and later repealed) by the Provisional Legislative Council. It is highly unlikely that a right to collective bargaining will be established under our current constitutional order.  Thus we cannot rely on union activity to address the gender pay gap in salaries in Hong Kong.  In my view, this makes a particularly compelling case for the Equal Opportunities Commission to start developing mechanisms to implement equal pay for work of equal value.