CMNT_TITLE

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

Other comments on C111

Observation

Direct Request

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The Committee takes note of the observations of the Confederation of Free Trade Unions of Ukraine (KVPU) received on 25 August 2021 and communicated to the Government. The Committee requests the Government to provide its comments in this respect.

Draft Labour Code. The Committee takes note of the indication by the Government that the draft Labour Code mentioned in the previous comments was not registered with the Parliament and that the draft Labour Act No. 2708 that had been registered with Parliament was subsequently withdrawn. The Committee therefore requests the Government to continue to provide information on any legislative development, including the possible adoption a new Labour Code, in relation to the application of the Convention.

Article 1(1)(a) of the Convention. Grounds of discrimination. National extraction. Legislation. In its last comment, the Committee noted that the ground of “national extraction”, as protected by Article 1(1)(a) of the Convention, was not explicitly enumerated in the legislation and requested the Government to clarify whether this ground was covered by the terms “or other characteristics” used in the Employment Act (2012) (section 11(1)) and the Law on Preventing and Combating Discrimination in Ukraine (2012) (sections 1(2)-(3)). In its report, the Government indicates that following the amendment of section 21 of the Labour Code (Act No. 785-VIII of 12 November 2015), the definition of discrimination was expended to enumerate several additional prohibited grounds, including “ethnic, social, and foreign extraction”. The Government specifies in its report that the term “national extraction” falls within the scope of the terms “ethnic and foreign extraction” mentioned in article 21 of the Labour Code. In this regard, the Committee recalls that where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention (2012 General Survey on the fundamental Conventions, paragraph 853). The Committee requests the Government to examine the possibility to harmonize the explicit list of discrimination grounds in the Labour Code with the lists in the Employment Act (2012) and the Law on Preventing and Combating Discrimination in Ukraine (2012), to ensure that the protection covers at least all the grounds enumerated under article 1(1)(a) of the Convention, including through an explicit reference to “national extraction” (ethnic or foreign extraction). In the meantime, it asks the Government to indicate whether the expression “other characteristics” used in the Employment Act (2012) (section 11(1)) and the Law on Preventing and Combating Discrimination in Ukraine (2012) (sections 1(2)-(3)) has ever been used to address discrimination based on national (ethnic or foreign) extraction by the competent authorities.

Discrimination based on sex. Sexual harassment. The Committee requested repeatedly to the Government to clarify whether section 1(7) of the Law on Preventing and Combating Discrimination in Ukraine (2012) prohibited, in practice, both quid pro quo and hostile work environment sexual harassment. The Committee also requested the Government to consider expanding the definition of sexual harassment in the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men (2005) (section 1) to go beyond relationships of subordination and to cover hostile work environment sexual harassment. Last, it asked the Government to provide information on the practical measures taken to prevent and address all forms of sexual harassment in employment and occupation. On the applicable legislation, the Government refers to the definitions of sexual harassment in section 1(7) of the Law on Preventing and Combating Discrimination in Ukraine (2012) and section 1 of the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men (2005). However, the Committee notes that the Government does not specify whether these two sections prohibit both quid pro quo and hostile environment sexual harassment, nor whether they go beyond relationships of subordination. On the measures adopted, the Committee recalls that section 17 of the Law of 2005 requires employers to take measures to prevent sexual harassment. The Committee further notes the indications by the Government that it has developed the Methodological Recommendations, approved by Order No. 56 of the Ministry of Social Policy, dated 29 January 2020, requiring that a separate provision be included in collective agreements to combat sexual harassment in the workplace, with a clear definition of what sexual harassment is, as well as the development of a detailed procedure for addressing complaints. The Committee once again asks the Government to specify whether sections 1(7) of the Law on Preventing and Combating Discrimination prohibits, in practice, both quid pro quo and hostile work environment sexual harassment. It also requests once again the Government to clarify whether section 1 of the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men covers situations of sexual harassment when there is no relation of subordination. The Committee asks the Government to provide information on the implementation of the methodological recommendation to include provisions on sexual harassment in collective agreements and develop a procedure for addressing complaints. The Committee also asks the Government to provide information on any measures taken by employers to prevent sexual harassment and on cases of sexual harassment identified or brought to the attention of the authorities, including their outcome, the sanctions imposed and remedies granted.

Article 1(1)(b). Other grounds of discrimination. HIV and AIDS. In its last comment, the Committee invited the Government to consider explicitly prohibiting HIV screening for the purpose of exclusion from employment or work process. The Committee notes in this regard the indication by the Government that section 21 of the Labour Code prohibits discrimination based on suspicion or presence of HIV/AIDS and section 25 of the Labour Code prohibits requesting information that is not required to be submitted under the legislation. The Committee however notes that section 24 of the Labour Code requires workers to present a health status document when concluding an employment contract. The Committee therefore asks the Government to specify whether the health status document requested under section 24 of the Labour Code includes information on HIV status. It also requests the Government to provide information on the measures taken or envisaged to prevent and address discrimination based on real or perceived HIV status in practice, such as awareness-raising measures, and information on any cases detected or complaints filed with details on the facts of the cases and their outcome.

Persons with disabilities. The Committee requested 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. The Government indicates that pursuant to the Employment Act (2012) and the Act on social protection of persons with a disability (1991), the State Employment Service facilitates the employment of persons with a disability in jobs that are created or adapted for them in enterprises, institutions and organizations, taking into account the recommendations of the Medical and Social Expert Commission (MSEC). The employer cannot refuse to employ a person with a disability, based on this disability, except in cases where, according to the conclusions of the MSEC, their health status would impede the performance of their professional responsibilities or threaten the health and safety of other persons. In 2020, 61,200 workers with disabilities contacted the State Employment Service with 11,700 of them finding employment, and 2,900 unemployed workers with disabilities undertook vocational trainings; from January to June 2021, 7000 persons with disabilities secured employment, which is a 25.2 per cent increase compared to the previous year, and 1400 unemployed workers with disabilities undertook vocational training. Furthermore, the Government indicates that the adoption of Act No. 1213-IX dated 04 February 2021 on the introduction of amendments to several legislative acts to improve the level regulation of remote work, was an effective step towards providing the conditions for the organization of work of workers with disabilities who are unable to work at the employers’ premises. The Committee takes note of this information. It further notes that, in its concluding observations, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) expressed concern over the high unemployment rate of workers with disabilities (E/C.12/UKR/CO/7, 2 April 2020, paragraph 19). The Committee requests the Government to continue to provide detailed information on the measures adopted to facilitate access to employment to workers with disabilities, including on the impact of the regulation of remote work on the level of unemployment of persons with disabilities, and to ensure their effective protection from discrimination in employment and occupation in practice. It also requests the Government to provide detailed information on any case of discrimination based on disability, detected by or addressed to the competent authorities, with details on their outcome, the sanctions imposed and the remedies granted.

Articles 1(2) and 4. Discrimination based on political opinion. Inherent requirements of the job. Activities prejudicial to the security of the State. In its last comment, the Committee noted the potentially broad impact of the Law on Cleansing of the Authorities No. 1682-VII on local and national government employees and 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, strictly interpreted. The Committee also requested 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. Noting the report of the Government does not provide any information in this regard, the Committee reiterates its request for detailed information on the application in practice of the Law on Cleansing of the Authorities No. 1682-VII on local and national government employees.

Article 1(3). Definition of discrimination. Scope. Legislation. The Committee takes note of the KVPU’s general observation according to which section 1 of the Law on Preventing and Combating Discrimination in Ukraine (2012) does not meet the definition of the Convention. The Committee also observes that neither section 1 of the Law on Preventing and Combating Discrimination in Ukraine (2012) nor section 1 of Law on Ensuring Equal Rights and Equal Opportunities of Women and Men (2005) – that both define discrimination – explicitly apply to the fields of employment and occupation. In addition, the Committee notes that section 21 of the Labour Code refers to “discrimination in the field of labour” and section 11(1) of the Employment Act (2012) to “discrimination in employment” without defining specifically these fields. Furthermore, the Committee takes note of the information provided by the Government indicating that several draft laws have been registered with the Parliament relating to the definition of discrimination. Draft law No. 0931, dated 29 August 2019 on the introduction of amendments to several legislative acts of Ukraine (to harmonize legislation on preventing and combatting discrimination with European Union law) that proposes the following: (1) adding the definitions of the following concepts to the legislation: “multiple discrimination”, “victimization”, “discrimination by association”, “reasonable accommodation” and “denial of reasonable accommodation”; (2) granting the Commissioner of the Parliament for Human Rights the authority to issue mandatory instructions on the basis of complaints filed by individuals or groups on matters related to discrimination; and (3) amendments to section 161 of the Criminal Code to replace criminal liability for discrimination with administrative liability under section 18849 of the Code of Administrative Offenses of Ukraine. The Government also refers to draft law No. 5748 on the introduction of amendments to several legislative acts of Ukraine to combat violations of rights in the world of work, dated 12 July 2021, which proposes introducing a definition of the concept of “mobbing”. While taking note of the information provided on these draft legislation, the Committee recalls the provisions of the legislation currently in force do not explicitly specify the stages of employment or occupation covered by the protections against discrimination. It also recalls that the principle of equality of opportunity and treatment should apply to all aspects of employment and occupation, including access to vocational training, access to employment and to particular occupations, and terms and conditions of employment, as required under Article 1(3) of the Convention. The Committee therefore asks the Government to clarify whether all aspects of employment and occupation, including access to vocational training, are covered by section 1 of the Law on Preventing and Combating Discrimination in Ukraine (2012), section 1 of the Law on Ensuring Equal Rights and Equal Opportunities of Women and Men (2005), section 21 of the Labour Code, and section 11(1) of the Employment Act (2005). The Committee also requests the Government to continue to provide information on the legislative developments regarding draft laws Nos. 0931 and 5748, as well as on any other legislative development in relation to discrimination in employment and occupation. In this context and referring to the previous paragraph, the Committee invites the Government to ensure that any definition of discrimination included in the new legislation also covers at least all the grounds enumerated in article 1(1)(a) of the legislation and all stages of employment and occupation.

Articles 2 and 3. Equality of opportunity and treatment between men and women. The Committee requested the Government to provide information on: (1) the measures taken to eliminate gender-based stereotypes with respect to employment and occupation; (2) the implementation of the Programme on providing Equal Rights and Opportunities for Women and Men up to 2021; (3) the proactive measures taken to address the underlying causes of discrimination; and (4) statistical information on the economic participation of men and women in different jobs occupations and sectors of the economy. The Committee takes note of the Government’s indication that the Programme on providing Equal Rights and Opportunities for Women and Men up to 2021 is being implemented in practice through a series of activities aiming at reducing the gender imbalance in the field of public service and human resources management, and at overcoming gender stereotypes through awareness-raising campaigns and activities, the development and use of educational programmes for boys and girls, and through ensuring equal access to girls and women to higher education institutions. The Committee also takes note of the statistical information provided by the Government and observes that: (1) men remain predominant in executive positions (out of 1,269.3 thousand persons employed as executives, 516.3 thousand are women and 753.0 thousand are men); and (2) women continue to be concentrated in traditionally “female dominated sectors” (for instance out of 2,633.6 thousand persons employed as trade and service workers, 1.785.0 thousand are women and 848.6 thousand are men). The Committee also notes that according to the report on the national-level review of the implementation of the Beijing Declaration and Platform for Action, 1995 (Beijing +25 national report), high levels of labour market gender segregation (horizontal and vertical) remain and despite the fact that the educational level of women is higher, their employment level remains lower than that of men; at the same time, the concentration of women in “humanities” and men in “natural” and “technical” education is a significant cause of gender imbalance in the employment policy (Beijing +25 national report, pp. 11–12). The Committee also observes that, in its concluding observations, the CESCR expressed concern over the fact that women are underrepresented in public service and the private labour market, and over the horizontal and vertical sex segregation. More generally, the CESCR is concerned about the persistent gender stereotypes relating to the roles of men and women, which perpetuate gender inequality in the country. As a result, women, particularly those in vulnerable situations such as internally displaced women and Roma women, continue to bear a disproportionate burden in terms of unpaid domestic and care work, which hinders their full participation in public life and in the labour market (E/C.12/UKR/CO/7, paragraphs 16 and 19). The Committee therefore requests the Government to continue its efforts to eliminate gender-based stereotypes (including through awareness-raising campaigns to promote the equal sharing of family responsibilities, with a view to facilitating women’s participation in the labour market) and to provide detailed information, including statistical data, on the results of the Programme on providing Equal Rights and Opportunities for Women and Men up to 2021. More generally, the Committee requests the Government to provide information on any other relevant measure adopted on the horizontal and vertical segregation between men and women in the labour market, such measures to facilitate women’s access to vocational education and training in areas that are traditionally male dominated.

Discrimination based on race, colour or national extraction. Roma people. The Committee requested the Government to provide information on the implementation of the Action Plan for the Protection and Integration of the Roma Minority. It also requested 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. The Government indicates that persons from the Roma minority may apply to any employment centre where they are provided with assistance in finding employment, including through consulting and career guidance activities and access to occupation or vocational training. The Government further indicates that in 2021, a Memorandum of Cooperation was signed between the Odessa regional employment centre and the Centre for the protection of Roma rights, and an Agreement of Cooperation was signed between the Kremen regional employment centre and Kremen Roma, a public organization. These frameworks aim at developing dialogue with representatives of the Roma population to promote employment among the Roma communities. During the first half of 2021, the State Employment Service provided the following services: 131 people from the Roma population were granted the status of unemployed workers, 99 received unemployment benefits, 36 found employment, 8 undertook vocational training, 147 received career guidance services, and 282 received information and consulting services. The Committee takes note of this information. The Committee also notes that the CESCR expressed concern over high rates of unemployment among Roma workers (E/C.12/UKR/CO/7, paragraph 21) and observes that the report of the Government does not include information on the implementation of the Action Plan for the Protection and Integration of the Roma Minority and its impact in practice on the participation of members of the Roma community participate in vocational training and employment in the private and public sector. The Committee asks the Government to provide information on the results of the dialogue taking place within the cooperation framework established between the regional employment centres and the representative of the Roma population, and on any new initiative to promote employment among the Roma communities. It also asks once again 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 to identify the underlying causes of the persistent discrimination in employment faced by the Roma minority and address them.

Article 5. Special measures of protection. Discrimination based on sex. The Committee requested 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. The Committee notes with interest the indication by the Government that Act No. 1401-IX, dated 15 April 2021 on the introduction of several legislative acts of Ukraine to ensure equal opportunities for mother and fathers to care for a child was adopted. The Act provides for the father’s right to paid leave for a duration of 14 calendar days after the child’s birth and for a parental leave until the child reaches three years of age that may be granted to the mother or the father under equal conditions. A draft act is also under development by the Ministry of the Economy, to limit the complete prohibition of night work and overtime currently applicable to women with children under the age of 3 (section 175 and 176 of the Labour Code) to breast-feeding mothers with children under the age of 18 months. The draft also aims at eliminating the restriction on women’s night work (section 175 of the Labour Code) and at limiting the prohibition of women’s employment in heavy work, work in harmful or dangerous conditions, and underground work (section 174 of the Labour Code) to pregnant women and breast-feeding mothers with children under the age of 18 months. The Committee requests the Government to continue to provide information on any legislative developments aimed at ensuring that provisions relating to the protection of persons working under hazardous or difficult conditions are aimed at protecting the health and safety of both men and women at work, while considering gender differences with regard to specific risks to their health (for instance for pregnant and breast-feeding mothers). The Committee asks in particular the Government to provide information on the possible adoption of the draft under development on the employment of women referenced in the report.

Enforcement. The Committee requested 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. The Committee also requested the Government to 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. Noting that the report of the Government does not provide any information in this regard, the Committee asks once again the Government to provide detailed information on the measures adopted to ensure the enforcement of the Convention in practice, including information on the activities of the labour inspectorate and the Ukrainian Parliament Commission on Human Rights in relation to non-discrimination and equality.