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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Turkmenistan (RATIFICATION: 1997)

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Article 1 of the Convention. Legislation. Prohibition of discrimination. The Committee previously noted that section 7 of the Labour Code protects workers against discrimination in labour relations on the grounds of “nationality, race, sex, origin, property and official status, place of residence, language, age, religion, political opinion, political affiliation and lack of affiliation to any party, as well as other circumstances not related to occupational skills of employees and the results of their work”. The Committee notes with interest that the ground of “colour” was included in section 7, as a result of Law No. 417-V of 18 June 2016 amending and supplementing the Labour Code, and in the new Constitution adopted in 2016. It further notes that section 22(1) of Law No. 363-V of 26 March 2016 on the Public Service protects workers in the public sector (excluded from the Labour Code) against discrimination in access to employment on the grounds of “nationality, race, sex, origin, property and official status, place of residence, language, religion, political opinion, political affiliation or lack of affiliation to any party”. Noting that the ground of “colour” is not included in Law No. 363-V, the Committee wishes to recall that where legal provisions are adopted in order to give effect to the Convention, they should at least include all the grounds of discrimination laid down in Article 1(1)(a) of the Convention, namely sex, race, colour, religion, political opinion, national extraction and social origin. It further recalls that the concept of “national extraction” covers distinctions made on the basis of a person’s place of birth, ancestry or foreign origin, and differs from “nationality”. Noting that relevant legislative provisions refer to “origin” the Committee further recalls that the ground of “social origin” covers situations in which an individual’s membership of a class, socio-occupational category or caste determines his or her occupational future, either because he or she is denied access to certain jobs or activities, or is assigned only certain jobs (see 2012 General Survey on the fundamental Conventions, paragraphs 764, 802 and 853). The Committee therefore asks the Government to take the necessary steps to amend Law No. 363-V of 26 March 2016 on Public Service to ensure that civil servants are protected against discrimination on the ground of “colour”, and to clarify whether the term “origin” referred to in section 7 of the Labour Code and section 22(1) of Law No. 363-V covers “social origin” and “national extraction” as explained above. It again asks the Government to provide specific information on the extent to which the above-mentioned legislative provisions cover both direct and indirect discrimination, and at all stages of the employment process, including access to vocational training, employment and particular occupations, and terms and conditions of employment.

Scope of application. Noting that the Labour Code excludes from its scope of application, and therefore from the protection against discrimination set out under section 7, “other persons, as determined by law” (section 5(6)(3)), the Committee asks the Government to provide information on the categories of workers who are excluded and on any measures taken to ensure that these categories of workers enjoy protection against discrimination in law and in practice.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee previously noted that section 16 of Law No. 154 of 14 December 2007 on State Guarantees for Equal Rights for Women protects women against “sexual assault, abduction and human trafficking”, and that section 137 of the Criminal Code prohibits “coercion to engage in acts of a sexual nature”. The Committee notes from the Government’s report that section 24 of Law No. 264-V of 18 August 2015 on State Guarantees for Equal Rights and Equal Opportunities for Women and Men reproduces section 16 of Law No. 154 which was repealed by the new Law. The Committee notes the Government’s indication that “such provision will serve as a basis for amending national legislation on these matters and for further legislative initiatives to prevent all forms of violence against women”, as provided for under the National Action Plan on Human Rights for 2016–20.The Committee notes with regret, however, that the Government did not seize this opportunity to include specific provisions to prevent and eliminate all forms of sexual harassment in the workplace. The Committee further notes that in their 2018 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) and the UN Committee on Economic, Social and Cultural Rights (CESCR) both expressed concern about the absence of legislation on sexual harassment in the workplace and the general lack of understanding of its criminal nature and harmful effects (CEDAW/C/TKM/CO/5, 25 July 2018, paragraph 36; and E/C.12/TKM/CO/2, 31 October 2018, paragraph 20). Recalling that sexual harassment is a serious manifestation of sex discrimination which requires sufficiently dissuasive sanctions and adequate compensations, the Committee asks the Government to take the necessary steps to ensure that all workers are protected in law and practice against all forms of sexual harassment in employment and occupation (both quid pro quo and hostile environment sexual harassment), and to provide adequate means of redress. It further asks the Government to provide information on any proactive measures taken to prevent and prohibit sexual harassment at work, including through awareness-raising of workers, employers and their respective organizations, as well as on their impact.

Article 1(1)(b). Additional grounds. Disability. The Committee recalls that section 265 of the Labour Code prohibits discrimination against persons with disabilities, ensuring them full socio-economic rights enshrined in the Constitution. It welcomes the adoption in October 2016 of the Action Plan to ensure the full exercise of employment and occupation rights by persons with disabilities for 2017–20. This aims to create conditions that support the employment of disabled persons by introducing a hiring quota of 5 per cent. While welcoming this information, the Committee notes that in its 2018 concluding observations, the CESCR expressed concern about discrimination in employment faced by persons with disabilities, both in the public and private sectors, as well as at the fact that the employment rate among persons with disabilities is very low, despite the measures taken to stimulate their employment in the framework of the action plan (E/C.12/TKM/CO/2, 31 October 2018, paragraph 18). In that regard, it notes, from the report submitted by the Government in the context of the Universal Periodic Review (UPR), that in large and medium-sized enterprises, persons with disabilities accounted only for 0.5 per cent of the total number of employees in 2016 (A/HRC/WG.6/30/TKM/1, 26 February 2018, paragraph 231). The Committee asks the Government to provide information on any steps taken, including in the framework of the Action Plan to ensure full exercise of employment and occupation rights by persons with disabilities for 2017–20, to facilitate vocational training and promote employment opportunities for persons with disabilities, both in the public and private sectors, including by ensuring the effective implementation of employment quotas. It further asks the Government to provide information on the employment rates of persons with disabilities, disaggregated by sex, occupation and economic sector, as well as on any complaints regarding employment discrimination based on disability brought before the competent authorities, the sanctions imposed and the remedies granted.

Article 1(2). Inherent requirements of a particular job. The Committee previously noted that section 7(2) of the Labour Code provides that “any distinction in employment justified by inherent requirements of the job is not considered to be discrimination” and requested the Government to provide examples of the practical implementation of this provision. The Committee notes that, once again, the Government does not provide any information on this issue. The Committee also notes that section 6(2) of Law No. 264-V of 18 August 2015 on State Guarantees for Equal Rights and Equal Opportunities for Women and Men contains similar provisions and that, pursuant to section 6(4) of the same law, the establishment of requirements for professional qualifications based on the ability to perform duties only by persons of a certain sex do not constitute discrimination. The Committee draws the Government’s attention to the fact that women should have the right to pursue freely any job or profession and that exclusions or preferences in respect of a particular job in the context of Article 1(2) of the Convention should be determined objectively without reliance on stereotypes and negative prejudices about men’s and women’s roles (see the 2012 General Survey, paragraph 788). In light of the persistent occupational gender segregation of the labour market, the Committee again asks the Government to provide examples of the application of section 7(2) of the Labour Code and section 6(2) of Law No. 264-V in practice, including by providing any administrative or judicial decisions interpreting the concept of “inherent requirements of the job”. It further asks the Government to provide concrete examples of cases in which section 6(4) of Law No. 264-V has been applied in practice. The Committee asks the Government to provide information on any steps taken, including in collaboration with employers’ and workers’ organizations, to ensure that the above-mentioned legislative provisions do not perpetuate gender stereotypes, nor lead in practice to direct or indirect discrimination against women.

Articles 2 and 3. Equality of opportunity and treatment of men and women. Referring to its previous comments on persistent occupational gender segregation and gender discrimination in both access to employment and in terms and conditions of work, the Committee notes from the statistical information provided by the Government that, in 2016, women represented 45.1 per cent of the total number of persons actually employed, but only 42.8 per cent of the economically active population. It further notes that women are still concentrated in sectors such as manufacturing, healthcare and social services and education, while men tend to be employed in extracting industries, electricity and gas, construction and transport. Furthermore, in 2016, only 25 per cent of managers were women, while they still represent 64.4 per cent of clerical support workers. The Committee notes the Government’s statement that various awareness-raising campaigns took place to eradicate stereotypes concerning “women’s work” and “men’s work” in education and employment, in particular at the time of choosing an occupation and field of study. The Government indicates that while there is virtually no gender imbalance in primary and secondary education, women only represent 35.3 per cent of those entering higher education. The Committee welcomes the adoption of the National Action Plan on Gender Equality (NAPGE) for 2015–20 and the National Action Plan for Human Rights (NAPHR) for 2016–20, which, according to the information provided by the Government, set out strategic goals for the advancement of gender equality and the enhancement of women’s participation in the socio-economic sphere. Noting the Government’s statement that the elimination of discriminatory gender stereotypes is a key component of the NAPGE, the Committee notes that the Government does not provide any concrete information on the content and impact of the measures envisaged or implemented in the framework of both action plans. It further notes that, in their 2018 concluding observations, the CEDAW and CESCR expressed concern about : (i) the low participation of women in the formal labour market and under-representation in the public and private sectors, in particular at decision-making levels, including in the public sector, as well as reports that women are prohibited from taking higher-level positions; (ii) the high concentration of women in unskilled jobs, in particular in the agricultural sector; (iii) the low enrolment rates among women and girls in higher education and technical and vocational education, as well as the persistent under-representation of women and girls in non-traditional fields of study and career paths, such as science, technology, engineering and mathematics; (iv) the persistent horizontal and vertical occupational segregation of the labour markets; as well as (v) reports of government authorities prohibiting women from travelling abroad to pursue higher education and to seek employment opportunities and of coercing women of Turkmen nationality living abroad as migrant workers to return to Turkmenistan, including through the intimidation of family members and threats of punitive measures in the event that they do not return (CEDAW/C/TKM/CO/5, 25 July 2018, paragraphs 18, 26, 32 and 34; and E/C.12/TKM/CO/2, 31 October 2018, paragraph 20). The Committee asks the Government to strengthen its efforts to improve equality of opportunity and treatment between men and women in employment and occupation by (i) effectively enhancing women’s economic empowerment and access to decision-making positions; (ii) overcoming the persistent obstacles faced by women in employment and occupation, such as horizontal and vertical gender segregation in the labour market and gender stereotypes and prejudices; as well as (iii) by encouraging girls and women to choose non-traditional fields of study and professions. It asks the Government to provide detailed information on the content and impact of the concrete measures implemented to that end, including in the framework of the National Action Plan for Gender Equality for 2015–20 and the National Action Plan for Human Rights for 2016–20, and to provide a copy of any assessments made in that regard. The Committee asks the Government to provide updated statistical information on the distribution of men and women, disaggregated by economic activity and occupation, both in the public and private sectors, as well as in the informal economy

Reconciliation of work and family responsibilities. The Committee previously noted that section 243 of the Labour Code provides for specific measures for women workers with children, such as the prohibition of overtime, night work, work during weekends, public holidays and commemorative days, and travel restrictions, and that men with family responsibilities are only granted the same rights if they are responsible for children without a mother (section 249 of the Labour Code). Noting the repeated lack of information from the Government in its regard, the Committee notes that, in their 2018 concluding observations, the CEDAW and the CESCR expressed concern about the persistent discriminatory stereotypes regarding the roles and responsibilities of women and men in society and in the family, and the insufficient measures taken to promote the concept of shared family responsibilities. The Committee notes the Government’s statement that more women than men make use of flexible working arrangements, such as part-time work and temporary work, to combine work and family responsibilities. The Committee recalls that, when legislation, collective agreements or other measures reflect the assumption that the main responsibility for family care lies with women or excludes men from certain rights and benefits, it reinforces and prolongs stereotypes regarding the roles of women and men in the family and in society. It considers that, in order to achieve the objective of the Convention, measures to assist workers with family responsibilities should be available to men and women on an equal footing and recalls that the Workers with Family Responsibilities Convention, 1981 (No. 156), provides important guidance on measures to overcome discrimination based on family responsibilities and to assist workers with family responsibilities with a view to promoting equality of opportunity and treatment between men and women, and between workers with family responsibilities and other workers (see 2012 General Survey, paragraph 786). In light of the persistent gender stereotypes regarding women’s and men’s roles in the family and in society, the Committee asks the Government to take steps, in collaboration with the employers’ and workers’ organizations, to review and amend its legislation with a view to ensuring that arrangements and entitlements aimed at reconciling work and family responsibilities are made available to women and men on an equal footing. It also asks the Government to provide information on any measures taken to improve the reconciliation of work and family responsibilities for men and women workers, as well as on any awareness-raising activities carried out to address stereotyped assumptions that the main responsibility for family care lies with women, and on their outcomes.

Equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee notes that section 4(9) of Law No. 411-V of 18 June 2016 on Employment provides for the protection of the domestic labour market by establishing “quotas for attracting foreign labour”, defined by section 1(8) of the Law as the share of foreign labour as a percentage of the total number of employees in an enterprise, organization or institution determined by the Cabinet of Ministers. It further notes that in their concluding observations, several UN treaty bodies recently expressed concern about: (i) restrictions on the recognition of diplomas obtained from foreign universities and the difficulties such workers face in obtaining employment in the public sector; and (ii) discrimination faced by foreign workers and members of ethnic minority groups, including those with Turkmen nationality and those with non-Turkmen surnames, and recommended that steps should be taken to ensure that they have equal access to education and employment (E/C.12/TKM/CO/2, 31 October 2018, paragraph 39(c); CEDAW/C/TKM/CO/5, 25 July 2018, paragraphs 32 and 46; and CERD/C/TKM/CO/8-11, 7 February 2017, paragraph 17). Given the absence of legislative provisions expressly prohibiting discrimination in employment on the ground of “national extraction”, the Committee asks the Government to provide information on the application of section 4(9) of Law No. 411-V in practice, including examples of quotas on foreign labour set in the public and private sectors. It further asks the Government to provide information on the concrete measures taken to prevent direct and indirect discrimination against members of ethnic minorities and migrant workers based on race, colour and national extraction in all aspect of employment and occupation, including in access to education in employment, in particular in the public sector. The Committee asks the Government to provide statistical information on the participation of members of ethnic minorities and migrant workers in the labour market, both in public and private sectors, as well as at all levels of education.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population. The Committee draws the Government's attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 3(a). Cooperation with employers’ and workers’ organizations. The Committee again asks the Government to provide detailed information on any steps taken in practice to ensure that the social partners are made aware of, and promote equality of treatment and opportunity in employment and occupation with a view to eliminating any discrimination in respect thereof.

Article 5. Restrictions on women’s employment. The Committee previously noted that section 7(2) of the Labour Code provides that any distinction in employment justified by particular state policies on categories of people who need increased social and legal protection (women, minors, disabled persons and others) established by law is not considered to be discrimination. The Committee asked the Government to consider amending such provision to limit the protection of women to what is strictly necessary to protect maternity. While noting that the Government did not provide any information in this regard, the Committee notes with regret that similar provisions were included in section 6(3) of Law No. 264 V of 2015 on State Guarantees for Equal Rights and Equal Opportunities for Women and Men. It further notes the Government’s repeated indication that, pursuant to section 243 of the Labour Code, a list of jobs, occupations and positions with a risk/particularly high risk of occupational accident or disease in which the employment of women is restricted is currently being reviewed by the competent authorities. The Government adds that such a list will take into consideration the maximum loads to be lifted and carried manually by women workers as provided for in section 242(2) of the Labour Code, risk factors for occupational accidents and diseases (whether chemical, physical or biological) and the physical and mental stress involved in a job. The Committee again recalls that, when provisions relating to protective measures for women are considered, a distinction should be made between special measures protecting maternity in the strict sense, which come within the scope of Article 5, and those aimed at protecting women generally because of their sex or gender, based on stereotypical perceptions about their capabilities and appropriate role in society, which are contrary to the Convention. In this regard, the Committee considers that protective measures applicable to women’s employment, which are based on stereotypes regarding women’s professional abilities and role in society, violate the principle of equality of opportunity and treatment between men and women in employment and occupation. In addition, 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 (see 2012 General Survey, paragraphs 839 and 840). The Committee notes that in its 2018 concluding observations, the CEDAW also expressed concern about the list of professions considered dangerous and unsuitable for women and the consistent position of the State party that such distinctions are not discriminatory under the current legislation (CEDAW/C/TKM/CO/5, 25 July 2018, paragraph 34). The Committee notes that the Human Rights Council, in the context of the Universal Periodic Review (UPR), also recommended that the Government revise provisions in the Labour Code that justify restriction on women’s employment based on gender stereotypes (A/HRC/39/3, 6 July 2018, paragraph 114). Referring to its 2019 direct request on the Equal Remuneration Convention, 1951 (No. 100) concerning earnings differentials between men and women resulting from restrictions imposed on women’s employment, the Committee asks the Government to consider reviewing sections 7(2), 242(2) and 243 of the Labour Code and section 6(3) of Law No. 264-V in light of the principle of gender equality, to ensure that any restriction or limitation on the employment of women is strictly limited to maternity protection, and to provide information on any steps taken in this regard.

Application in practice. Noting the establishment of an Ombudsman in March 2017, as a result of Law No. 476-V of 23 November 2016, and the Government’s statement, that as a positive result of the implementation of an effective gender equality policy, no citizens filed complaints regarding infringements of the provisions of the Convention before courts or other enforcement bodies, and that consequently, no sanctions or other remedies were imposed, the Committee wishes to recall that the Convention goes beyond discrimination on the ground of sex and that no society is free from discrimination. In this regard, the Committee draws the Government’s attention to the fact that where no cases or complaints are being lodged on discrimination issues, this may rather 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 (see 2012 General Survey on the fundamental Conventions, paragraph 870). The Committee asks the Government to take proactive steps to: (i) raise awareness on legislative provisions and policy measures, including on the procedures and remedies available; (ii) make assessments on the implementation of such provisions and measures, including in the framework of the National Action Plan on Gender Equality (2015–2020) and the National Action Plan on Human Rights (2016–2020); and (iii) promote and enforce the application of the principle of the Convention. It asks the Government to provide information on the content and outcomes of any activities undertaken in this regard, including in collaboration with employers’ and workers’ organizations, as well as on any cases of discrimination dealt with by the labour inspectors, the Ombudsman, the courts or any other enforcement authorities, specifying the sanctions imposed and the remedies granted.