International Center for Research on Women

Comments on Guidance Note ESS2

General Comments

These comments broadly address the Guidance Note ESS2 with regard to labor market terms and conditions, but also highlight the particular concerns ICRW would have around gender equality, pay equity, non-discrimination and access to child care.

The Guidance document would greatly benefit from many more citations and hyperlinks to guide the reader to key documents and toolkits that exist in the multilateral and UN system that can be of use to borrowers. The language in the document is very general and concrete guidance and toolkits can be particularly helpful for someone who is not familiar with the complexities of implementing non-discrimination measuresor equal pay for equal work, for example.

In various places, the document refers to ILO Conventions and UN Conventions. It would help if they were named appropriately. In some cases, the document is referring to the Fundamental Principles and Rights at Work and the Core Labor Standards. Can the Conventions be named and hyperlinks inserted so that interested parties can go to the source documents and guidance?

It would be particularly important to note at the outset of this document that in referring to the 1998 ILO Declaration on Fundamental Principles and Rights at Work this document declares on page 7: “… all Members, even if they have not ratifiedthe Conventions in question, have an obligation, arisingfrom the very fact of membership in the Organization,to respect, to promote and to realize, in good faith andin accordance with the Constitution, the principlesconcerning the fundamental rights which are the subjectof those Conventions, namely:

(a) freedom of association and the effective recognitionof the right to collective bargaining;

(b) the elimination of all forms of forced or compulsorylabour;

(d) the elimination of discrimination in respect ofemployment and occupation.”

Enabling readers to understand this and appealing to their need to reinforce the conditions of employment conventions that may not have been ratified in specific conventions through ILO membership countries is important to deepen and strengthen effective labor market institutions.

What we found particularly lacking was the absence of a discussion of remediation. Deviations can occur, but once discovered they should be corrected. The grievance mechanism section and reference to grievances throughout the document should also be supported by a fuller discussion of remediation and tools to monitor and address grievances over the life-cycle of the project.

The absence of any discussion about child-care, particularly with regard to large companies’ obligations or the recruitment of community workers in local projects is also of concern. Many large companies over a certain size are under an obligation to provide access to childcare for their workers – whether that service be provided on-site or not. Recognizing these obligations where they exist is important. Where community workers are employed all efforts should be made to ensure access to child care, particularly where the investment or borrowing may also be used to build infrastructure or strengthen markets as part of an emergency employment program. Child care should be appropriate and of the highest quality entailing no risk of child labor or of harm to the child.

Specific Comments

GN3.2 Identifying the nature of an employment relationship. Again, it would be very helpful to refer the borrower to ILO guidance on defining an employment relationship and the principle of the primacy of fact, which as the ILO points out in its document on employment relationships “is explicitly enshrined in somenational legal systems. This principle is also frequently applied by judges in the absenceof an express rule.” ILO (2006) p 8.

This analysis will be particularly helpful for the subsequent discussion of subcontracting.

GN 10.4 The World Bank could be bolder here and actually require that Bank funded projects actively support non-discrimination policies and practices. This would be consonant with the core labor standards and would protect potentially vulnerable groups such as migrants, the disabled, workers with HIV, pregnant or lactating women workers from being hired with substantially different terms and conditions of employment.

The Bank could also require that all paid work be formal work and ensure the appropriate payment of pensions and legal minimums. This would contribute to formalization efforts more broadly and could build in other objectives, including banking the unbanked and generalizing access to pensions. Examples like the formal payment of wages to workers into bank accounts through the MNREGA program could be given to borrowers to demonstrate that this is possibleeven in low income and emergency employment contexts and programs. This may be particularly important for those workers that are less likely to be banked or have pensions, including women.[1]

GN 13.1. Can you link here to the ILO guidance on non-discrimination and equal pay for equal work[2]? The guidance on equal pay for equal work for women is particularly helpful as it is extremely difficult to unravel many of the complexities of establishing discrimination. This is worth bearing in mind when we think about gender discrimination and pay equity. It is often very hard to prove discrimination or pay inequity as we need empirical evidence that controls carefully for differences in the returns to labor: age, skills, education, occupation, hours, use of machinery, etc. Moreover, a finer-grained analysis of occupational categories can be very complicated: the cleaner versus the hygiene technician, are they substantially different jobs or a way to disguise different pay rates? Finally, establishing discrimination disproportionately requires individuals initiating cases against employers. Access to justice and grievance and redress mechanisms are very important in this case. Inviting the reader to learn more about this complexity means they are less likely to dismiss ex ante the potential for discrimination and are more likely to understand its nuance and how to monitor and evaluate projects to avoid gender, race or other forms of discrimination more effectively.

GN 15.5. The discussion of pregnancy and lactation is important here and bears further elaboration. Can you describe how pregnancy is relevant for the terms and conditions of work and give a few examples: pesticides, excessive force etc.? This links to GN 25.1 and should also be brought up in this section as well.

[1] See Field, E., Pande, R., Rigol, N., Schaner, S., & Troyer Moore, C. (2016). On Her Account: Can Strengthening Women’s Financial Control Boost Female Labor Supply? (Working Paper). Cambridge, MA: Harvard University. Retrieved August 11, 2017, from

[2] See