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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Ukraine (RATIFICATION: 1961)

Other comments on C111

Observation

Direct Request

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The Committee notes the observations of the Confederation of Free Trade Unions of Ukraine (KVPU) received on 9 October 2017.

Article 1 of the Convention. Grounds of discrimination. Legislation. National extraction. In its previous comments, the Committee noted that the Law on Preventing and Combating Discrimination in Ukraine (2012) prohibits both direct and indirect discrimination on the grounds of race, colour, political, religious or other beliefs, sex, age, disability, ethnic or social origin, citizenship, marital stats, property status, place of residence, linguistic and any other characteristics that may be real or perceived (sections 1(2), 1(3) and 6(2)). It also noted that the Employment Law (2012) provides for protection against discrimination on an expanded set of grounds, including race, colour, political, religious or other beliefs, membership of trade unions or other associations, gender, age, ethnic and social origin, property status, place of residence, and linguistic or other characteristics (section 11(1)). Noting that the ground of national extraction does not appear in either law, the Committee had requested the Government to indicate if this ground could be included in the term “any other characteristics”. Recalling that a working group was set up to prepare a new Labour Code, the Committee takes note of the most recent version of the Bill, available on the Parliament’s website and dated 24 July 2017. It notes, from the draft Labour Code, that section 3(1) prohibits direct and indirect discrimination in rights and opportunities on the grounds of “race, colour, political, religious and other beliefs, sex, sexual orientation and gender identity, ethnic, social and of foreign origin, age, health, pregnancy, disability, suspicion or presence of HIV/AIDS, family and property status, family responsibilities, residence, membership in a trade union or other association of citizens, participation in a strike, appeal or intent to apply to a court or other bodies for the protection of their rights or to provide support to other employees in the protection of their rights, in linguistic or other grounds, not related to the nature of the work or the conditions for its implementation”. The Committee notes that all the grounds protected in Article 1(1)(a) of the Convention appear to be included in the draft Labour Code, except for “national extraction”. It further notes that section 3(1) protects a number of additional grounds. Noting that the ground of national extraction is not explicitly protected in the current legislation, the Committee requests the Government to clarify whether the ground of “national origin”, as protected by Article 1(1)(a) of the Convention, is covered by the term “foreign origin”, listed in section 3(1) of the draft Labour Code. Pending the introduction of the draft Bill, the Committee reiterates its request that the Government clarify whether the ground of national extraction is covered by the term “any other characteristics” in the Employment Act (2012) and the Law on Preventing and Combating Discrimination in Ukraine (2012).

Definition of discrimination. Legislation. The Committee notes that section 3 of the draft Labour Code prohibits: “any labour discrimination, including the violation of the principle of equality of rights and opportunities, direct or indirect restriction of the rights of workers on grounds that are not related to the nature of the work or the conditions for its performance”. The Committee notes that the prohibition of discrimination in the draft Labour Code applies to “employment and occupation” and that section 2(7) of the draft Bill sets out the principle of “equality of rights and opportunities of workers” but that neither provision explicitly refers to access to vocational training. The Committee therefore requests the Government to confirm whether the definition of discrimination, as set out in section 3(1) of the draft Labour Code, and read in conjunction with section 2(7), includes access to vocational training.

Discrimination on the basis of sex. Sexual harassment. The Committee recalls that section 17 of the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men (2006), under which the employer must take measures to prevent sexual harassment, does not appear to cover situations where conduct of a sexual nature creates a hostile working environment, irrespective of whether there is a relationship of subordination between the harasser and the victim. It also noted that, although sections 1(7) and 5 of the Law on Preventing and Combating Discrimination (2012) seem to prohibit pressure on a person due to certain characteristics that leads to hostile environment as a form of discrimination, it does not explicitly cover sexual harassment. The Committee thus requested that the Government clarify whether both forms of sexual harassment are prohibited under the law. The Committee notes that the Government’s report is again silent on this point and notes the absence of any provision to protect workers against sexual harassment in the draft Labour Code. Consequently, it wishes to recall its 2002 General Observation in which it stresses that sexual harassment is a serious manifestation of sex discrimination and a violation of human rights which undermines equality at work by calling into question integrity and dignity and the well-being of workers (see 2012 General Survey, paragraph 89). The Committee recalls that definitions of sexual harassment should contain both elements: (1) quid pro quo: any physical, verbal or non-verbal conduct of a sexual nature and other conduct based on sex affecting the dignity of women and men, which is unwelcome, unreasonable, and offensive to the recipient; and a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person’s job; and (2) hostile work environment: conduct that creates an intimidating, hostile or humiliating working environment for the recipient. Therefore, the Committee reiterates its request to the Government that it clarify whether sections 1(7) and 5 of the Law on Preventing and Combating Discrimination prohibit, in practice, both quid pro quo and hostile environment sexual harassment, and to provide information on their practical application. Further, in view of the gravity and serious repercussions of this form of sex discrimination, the Committee requests the Government to consider: (i) including a comprehensive definition of this form of discrimination in the draft Labour Code, and/or (ii) expanding the definition of sexual harassment in the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men to go beyond relationships of subordination and to cover hostile work environment sexual harassment. Please indicate the progress made in this regard. Further, it once again requests the Government to provide information on the practical measures taken to prevent and address all forms of sexual harassment in employment and occupation, for example through awareness-raising activities, and to provide information on any complaints of sexual harassment filed with the competent authorities and any remedies provided or sanctions imposed.

Article 1(1)(b). Other grounds of discrimination. HIV and AIDS. The Committee recalls its previous comments requesting the Government to take into account the observations raised by the National Forum of Trade Unions of Ukraine (NFTU) to include the grounds of conditions of birth in the draft Labour Code provisions prohibiting discrimination and to prohibit HIV and AIDS testing. The Committee welcomes the inclusion of a number of other protected grounds in section 3 of the draft Labour Code including, among others, sexual orientation, gender identity, pregnancy and suspicion or actual presence of HIV and AIDS. In order to support the ban on HIV and AIDS discrimination, the Committee invites the Government to consider explicitly prohibiting HIV screening for the purposes of exclusion from employment or work process in the draft Labour Code.

Persons with disabilities. The Committee recalls that section 1(2) of the Law on Preventing and Combating Discrimination in Ukraine prohibits discrimination on the ground of disability. In this regard, it notes that in its 2015 concluding observations the United Nations Committee on the Rights of Persons with Disabilities (CRPD) was concerned that the employment quota is not effectively enforced and that the majority of persons with disabilities remain unemployed (CRPD/C/UKR/CO/1, 2 October 2015, paragraph 50). In this regard, the Committee wishes to refer the Government to its detailed comments under the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159). The Committee requests the Government to provide information on the measures taken or envisaged to ensure that persons with disabilities do not suffer from direct or indirect discrimination in access to employment or occupation. Please also provide information on the application of the Convention in practice, including statistics, extracts from reports, studies or inquiries concerning employment of persons with disabilities.

Articles 1(2) and 4. Discrimination based on political opinion. Inherent requirements of the job. Activities prejudicial to the security of the State. The Committee previously noted that the Law on Cleansing of the Authorities (2014), appeared to establish a “screening” procedure to exclude persons who had certain duties under the previous regime and under the former Soviet Union from holding or applying to hold certain positions in the public service and that, according to section 7 of that Law, the Ministry of Justice is the primary body to determine whether a person is excluded from holding or applying for certain positions in the public service. In this regard, it requested the Government to indicate the measures taken to ensure that any restrictions on the right to hold certain positions are based on the inherent requirements of a particular job, and to provide information on the application of the Law in practice. Noting the absence of reply from the Government on this point, the Committee recalls that for measures not to be discriminatory under Article 4 of the Convention, they must firstly affect an individual on account of activities he or she is justifiably suspected of having, or has been proven to have, undertaken. These measures become discriminatory when simply based on membership of a particular group or community. Moreover they must refer to activities that can be considered as prejudicial to the security of the State and the individual concerned shall have the right to appeal to a competent body in accordance with national practice (see 2012 General Survey, paragraphs 832–835). The Committee stresses that the principle of proportionality must apply and that the exception under Article 4 should be interpreted strictly. It further recalls that political opinion may be taken into account as an inherent requirement, under Article 1(2) of the Convention for posts involving special responsibilities in relation to developing government policy. Once again, noting the potentially broad impact of the Law on Cleansing of the Authorities No. 1682-VII on local and national government employees, the Committee reiterates its requests to the Government that it indicate the measures taken to ensure that any restrictions on the right to hold certain positions are based on the inherent requirements of a particular job, strictly interpreted. It further requests the Government to closely monitor the practical application of the Law so as to ensure that it does not lead to discrimination based on political opinion contrary to the Convention, and to supply detailed information on the application of the Law in practice, including the number of persons who have been dismissed or excluded from applying to the posts and professions listed in the Act. The Committee also requests the Government to provide detailed information on the individual determinations made by the Ministry of Justice in applying the law and on any appeals brought before the court.

Articles 2 and 3. Equality of opportunity and treatment between men and women. The Committee previously noted the statistics indicating overall employment levels of 65.9 per cent for men and 55.3 per cent for women, showing that women workers are outnumbered by men in all sectors with particular imbalances in forestry and construction, and that women and men are more equally represented in the sectors of education, health, and financial services. The Committee also noted the continued under-representation of women in decision-making positions in the public and political sphere, in particular in Parliament and Government. It noted the State Programme to Ensure Equal Rights and Opportunities for Women and Men, 2013–16 which, according to the Government, included seminars, training, campaigns and research focusing on raising awareness and eliminating stereotypes regarding the equality of men and women. Finally, the Committee noted that the prohibition of discriminatory job advertisements provided for in section 17 of the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men (2006) had also been incorporated into sections 11(3) and 50(5)(1) of the Employment Act (2012) and in the Advertisement Act of Ukraine (1996) following amendments in 2013.

The Committee notes the extensive information provided by the Government. It notes the “Happiness in four hands” campaign, set up by the Ministry of Social Policy in the framework of the State Programme to Ensure Equal Rights and Opportunities for Women and Men, to raise-awareness and fight stereotypical views of the role of women and men in the family. The Committee notes, from the Government Portal official website, the adoption of a new Programme on providing Equal Rights and Opportunities for Women and Men up to 2021, to fulfil the country’s international commitments on gender equality, such as the Council of Europe Gender Equality Strategy 2018–23, the United Nations Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Sustainable Development Goals (SDGs). In this regard, the Committee wishes to stress that, before developing new programmes, it is essential to assess first the results and effectiveness of the previous ones, to ensure that the programmes about to be developed are informed by the difficulties and challenges encountered in the implementation of previous programmes. The Committee further notes the Government’s statement that through a project, in coordination with the Organization for Security and Cooperation in Europe (OSCE), it developed training courses and handbooks on gender equality and non-discrimination, designed for the use of journalists and the advertising industry. The Committee notes the Government’s indication that a draft Legislative Amendment Act amending the Employment Act and the Advertising Act has been presented to Parliament (Verkhovna Rada). According to the Government, this draft Legislative Amendment Act will enable the Central Government Authority to impose fines for breaches of the legislation with regard to job advertising and, accordingly, effectively eliminate discrimination at the recruitment process. The Committee notes however that the Government has not provided information on cases brought for the violation of the prohibition of discriminatory job advertising, nor has it provided statistical information on the number of men and women in different occupations and sectors of activity. It notes, from the 2017 concluding observations of the CEDAW, that the new legislative reforms for the advancement of women lack adequate resources for their implementation and accountability and that women, especially those in rural areas, are unaware of their rights and lack the necessary information to claim them (CEDAW/C/UKR/CO/8, 9 March 2017, paragraph 20). The Committee requests the Government to continue providing information on the measures taken to eliminate gender-based stereotypes with respect to employment and occupation and to provide specific information on the measures taken or envisaged to implement the new Programme on providing Equal Rights and Opportunities for Women and Men up to 2021, and the results achieved in this respect. Noting the absence of information provided in this regard, the Committee once again requests the Government to provide detailed information on the proactive measures taken to address the underlying causes of discrimination and de facto inequalities resulting from discrimination deeply entrenched in traditional and societal values in order to improve the employment levels of women in the public and private sectors and in decision-making positions, for example through the set-up of participation quotas. Please provide statistical information on the economic participation of men and women in different jobs, occupations and sectors of the economy (private and public sectors).

Discrimination on the basis of race, colour or national extraction. Roma. In its previous comments, the Committee noted that the Government adopted an Action Plan for the Protection and Integration of the Roma Minority for the period until 2020 and that awareness-raising measures had been carried out in connection with this plan. The Committee notes the Government’s indication that, in 2016, the State Employment Services carried out initiatives in areas with large numbers of Roma residents with the aim of ensuring their social protection and integrating them into Ukrainian society. According to the Government, throughout 2016, the State Employment Services also held 35 information, advice and vocational guidance events in areas with a high Roma population. The Committee notes the Government’s explanation that the law does not permit the collection of data based on ethnic origin, and that it therefore cannot provide statistical data on the number of Roma people in employment or training. In that regard, it wishes to point out that, in the absence of statistical disaggregated data, qualitative research or studies on the nature and extent of labour inequalities, including its underlying causes, are even more crucial to determine the nature, extent and causes of discrimination, design and implement a relevant and effective national equality policy under Articles 2 and 3 of the Convention, and monitor and evaluate its results. Further, the Committee notes, from the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD), the lack of funding and low level of implementation of the Action Plan for the Protection and Integration of the Roma Minority for the period until 2020 (CERD/C/UKR/CO/22-23, 4 October 2016, paragraph 19). The Committee also notes that the CERD expressed concern over the difficulties in accessing education, housing and education for the Roma who suffer from poverty and by the fact that despite some improvements, there is still low school attendance and a high illiteracy rate among Roma children (paragraph 21). The Committee requests the Government to ensure that sufficient funding is allocated for an effective implementation of the Action Plan for the Protection and Integration of the Roma Minority and to provide full information on the concrete measures taken or envisaged to increase the impact of the Plan in practice. Noting that the measures adopted to combat discrimination do not appear to have succeeded in eliminating or reducing acts of discrimination, particularly in access to employment and education, the Committee requests the Government to provide information on the measures envisaged to address discrimination against the Roma in order to ensure that they benefit from equal opportunities in employment and occupation, including in access to education. Recalling that data and statistics are crucial to inform national policies, the Committee requests the Government to undertake qualitative studies to evaluate the extent to which members of the Roma community participate in vocational training, as well as in employment in the private and public sector and to understand the underlying causes of the persistent discrimination in employment faced by the Roma minority, despite all the measures adopted.

Crimean Tatars. The Committee recalls its previous comments regarding the difficulties faced by Crimean Tatars in terms of access to employment. It had noted that following the events that began in early 2014 in the Autonomous Republic of Crimea, more than 6,000 Crimean Tatars had moved to other regions of Ukraine and that the Government had been taking measures to address employment issues for deported citizens. The Committee notes the Government’s indication that it adopted the Restoration of Rights (Persons Deported on Ethnic Grounds) Act (2014) to provide a legal basis for the formulation and implementation of state policies on the return, resettlement, social adaptation and integration of Crimean Tatars and other minorities who were deported on the grounds of their ethnicity. The Government indicates that in 2017, it allocated 35 million Ukranian Hryvnia (UAH) (approximately US$100,000) to the “Return and resettlement of Crimean Tatars and persons of other ethnicities deported from Ukraine Programme”. The Committee notes the CERD’s concerns that despite the Government’s efforts, Crimean Tatars in Government controlled regions face difficulties with regard to access to employment, social services and education and lack support (CERD/C/UKR/CO/22-23, paragraph 23). While noting the Government’s commitment to provide assistance to Crimean Tatars, the Committee requests the Government to provide information on and closely monitor the employment situation of Crimean Tatars, including any discrimination against them with respect to their access to employment and to particular occupations. The Committee recalls the importance of statistical information and once again requests the Government to provide any available information, including qualitative researches, on their participation in education, vocational training, and employment.

Article 5. Special measures of protection. Discrimination based on sex. The Committee recalls its previous comments in which it requested the Government to ensure that any restrictions on women’s employment that may be contained in the draft Labour Code should be strictly related to maternity protection and not based on stereotypical assumptions regarding the types of employment suitable for women. The Committee notes the KVPU’s observations according to which the draft Labour Code restricts women’s access to work. Indeed, the Committee notes that the draft Labour Code prohibits the involvement of women with children under three years of age in overtime and night work (sections 142 and 154), and provides childcare leave only to women or single fathers (section 198). The Committee further notes that according to section 291 of the draft Labour Code, it is prohibited to employ women in the manipulation of heavy items, with harmful or dangerous working conditions, as well as in underground works, and that the list of heavy works, and works in harmful or hazardous conditions prohibited to women is to be approved by the relevant central executive body. In its 2012 General Survey, paragraphs 838–840, the Committee stresses that a distinction should be drawn between (i) special measures to protect maternity in the strict sense, which come within the scope of Article 5 of the Convention; and (ii) measures based on stereotypical perceptions of women’s capabilities and their role in society, which are contrary to the principle of equality of opportunity and treatment. Provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking account of gender differences with regard to specific risks to their health. Moreover, with a view to repealing discriminatory protective measures applicable to women’s employment, it may be necessary to examine what other measures, such as improved health protection of both men and women, adequate transportation and security, as well as social services, are necessary to ensure that women can access these types of employment on an equal footing with men. Consequently, the Committee requests the Government to ensure that special measures for the protection of women are limited to that which is strictly necessary to protect maternity (in the strict sense), so as not to impede access of women to employment and occupation. With regard to the provisions of the draft Labour Code prohibiting certain types of works to women with children, the Committee refers to its detailed comments under the Workers with Family Responsibilities Convention, 1981 (No. 156).

Enforcement. The Committee notes the Government’s indication that no cases on discrimination have been brought to the courts. It further notes that, in its concluding observations, the CEDAW noted that in practice the justice system remains inaccessible to most women because of barriers such as corruption, lack of knowledge about their rights and the limited availability of legal aid (CEDAW/C/UKR/CO/8, paragraph 18). In this respect, the Committee recalls paragraph 870 of its 2012 General Survey in which it explains that where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals. The Committee therefore requests the Government to provide information on awareness-raising, education and capacity-building measures aimed at employers and workers, as well as labour inspectors, in order to ensure a better understanding of how to identify and address discrimination and to better promote equality in employment and occupation. Noting the absence of information on the number and nature of any complaints relating to the principle of the Convention, as well as any remedies provided and sanctions imposed in this regard, it also again requests that the Government provide information on the activities of the Ukrainian Parliament Commission on Human Rights in monitoring the implementation of the Law on Preventing and Combating Discrimination in employment and occupation.