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

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Direct Request

2021
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Article 1 of the Convention. Prohibition of discrimination. Legislation. Noting that the Government report does not respond to its previous request for clarification, the Committee once again asks the Government: (i) 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”; and (ii) to provide specific information on the extent to which the above-mentioned legislative provisions cover both direct and indirect discrimination, as well as all stages of the employment process, including access to vocational training, employment and particular occupations, and terms and conditions of employment.

Scope of application. Referring to its previous comments where it noted that the Labour Code excludes from its scope of application “other persons, as determined by law” (section 5(6)(3)), the Committee notes the Government’s indication that the workers concerned are officers and persons from other ranks in internal affairs agencies which are governed by the Law on Internal Affairs Agencies. The Government adds that these workers are protected in practice from protection against discrimination, as stipulated by the corresponding laws and regulations. The Committee takes note of the Government’s statement and requests it to provide a copy of this legislation.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. Noting that the Government report does not provide information in this regard, the Committee asks once again the Government: (i) 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); (ii) to provide adequate means of redress; and (iii) 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. Further to the Committee previous requests concerning the employment of persons with disabilities, the Government indicates that the implementation of the Action Plan to ensure the full exercise of employment and occupation rights by persons with disabilities for 2017–20 is in progress and that the employment of people in particular need of social support, including persons with disability, is continuing in line with the regulations setting a quota of 2 to 5 per cent of jobs in enterprises to be filled by persons with disabilities. In that regard, the Committee notes that the statistics provided show a decrease in the rate of employment of persons with disability between 2018 (6 per cent), 2019 (5.4 per cent) and 2020 (2.7 per cent). The Government informs the Committee that it is in the process of establishing a State Register of Persons with Disabilities, which would include essential information on each person with disability in order to identify their employment-related needs. In the interest of facilitating vocational training for people with disabilities and widening their employment opportunities in both the public and private sectors, the Ministry of Healthcare and the Medical Industry, in consultation with the Ministry of Labour and Social Protection, have developed and adopted a practical guideline on the type of jobs and occupations available for people with disabilities. The Committee notes also the information provided by the Government on its efforts to widen the range of social services available for persons with disability. The Committee trusts the Government is implementing these measures in a non-discriminatory way. Accordingly, the Committee asks the Government: (i) to provide information on the results of the measures adopted in the framework of the Action Plan to ensure the full exercise of employment and occupation rights by persons with disabilities for 2017–20; and (ii) investigate the reasons for the drastic decrease in the number of persons with disabilities employed between 2018 and 2020 despite the implementation of a quota policy, and the measures taken or envisaged to remedy them. It also asks the Government to provide information on any steps taken to facilitate vocational training and promote employment opportunities for persons with disabilities, both in the public and private sectors. Finally, the Committee 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. In response to the Committee’s request to provide examples of the implementation in practice of the concept of “inherent requirements of the job” mentioned in article 7(2) of the Labour Code, the Government refers to situations where job applicants have to undergo preliminary medical examinations or specific tests in order to be hired. In that regard, the Committee 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 (“any distinction in employment justified by inherent requirements of the job is not considered to be discrimination”) 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 wishes to draw once again the Government’s attention to the fact that, women should have the right to pursue freely any job or profession, and that exceptions relating to inherent requirements of a particular job should be interpreted restrictively and on a case-by-case basis, objectively without reliance on stereotypes and negative prejudices about men’s and women’s roles (see the 2012 General Survey on the Fundamental Conventions, paragraph 788 and 819). The Committee asks again the Government to provide concrete examples of cases in which the concept of “inherent requirement of a particular job”, mentioned in the Labour Code and the Law No. 264-V has been applied in practice, including by providing any administrative or judicial decisions interpreting the concept of “inherent requirements of a particular job”. 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. Previously the Committee requested the Government to strengthen its efforts to improve equality of opportunity and treatment between men and women in employment and occupation and 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. The Government states that implementation of the National Action Plan for Gender Equality 2015–2020 (hereafter the ‘Gender Equality Action Plan 2015–2020’), the National Action Plan for Human Rights 2016–2020, the National Action Plan for the Implementation of Children’s Rights 2018–2022, the National Plan to Combat Trafficking in Persons 2020–2022, and programmes of measures to implement these plans, which cover various aspects of improving women’s situation, have allowed Turkmenistan to make significant progress in resolving the issues around the equal rights and opportunities of women and men. According to the evaluation of the Gender Equality Action Plan 2015–2020, the implementation brought about positive reforms to the issue of equality of opportunity and treatment between men and women in employment and occupation. The country noteworthy achievements in this field include reaching gender parity in educational enrolment, ensuring decent working conditions, strengthening women’s position in society and increasing women’s representation in elected office. The evaluation of the implementation of the Gender Equality Action Plan 2015–2020 determined that additional efforts were required to address the issues surrounding the improvement of national law, the promotion of positive social gender norms, the active participation of local government in the implementation of gender policy and the strengthening of the mechanisms for monitoring and evaluating all aspects of its implementation. The Government informs the Committee that the Gender Equality Action Plan 2021–2025 was approved by resolution of the President in December 2020 and includes seven strategic strands, inter alia, equal access to education, women and girl’s economic rights and opportunities, women’s participation at all levels, and the strengthening of the legislative framework and institutional mechanisms. The Committee notes from the statistical information provided by the Government that, in 2020, women accounted for 45.8 per cent of the labour force and 46.1 per cent of the employed; and remained concentrated in healthcare and social services, education, and manufacturing sectors, while tended to be employed in mining and quarrying, public administration and defence, water supply, wastewater treatment, waste management and material recovery. The Government indicates that, in education, gender imbalance is reducing at levels and that girls are increasingly acquiring skills in promising new fields such as technology, physics, maths, and digital technology. The Committee asks the Government to provide information on : (i) the specific measures adopted to implement the new Gender Equality Action Plan, 2021-2025 and the results obtained in terms of enhancing women’s economic empowerment and access to decision-making positions; and (ii) the concrete measures taken or envisaged to overcome 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. Finally, it 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). Thus, it had asked 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. The Committee notes that, the Government confirms that section 249 of the Labour Code only applies to men who are bringing up their children without a mother (because she has died, forfeited her parental rights, is undergoing a lengthy stay in a medical facility, or is otherwise unavailable to care for her children). It adds however that: (1) section 97 of the Labour Code states that leave to care for children under the age of three may be granted to either a mother or a father who is looking after the child, as well as to the child’s official guardian, if the mother and father are unable to do so; and (2) section 246 entitles the parent who is caring for a child with disabilities under the age of 18 to an extra paid day off per month. The Committee asks again the Government to take steps, in collaboration with the employers’ and workers’ organizations, to review and amend its legislation with a view to ensuring non-discriminatory treatment to both men and women and that arrangements and entitlements aimed at reconciling work and family responsibilities are made available to both women and men on an equal footing. It also asks the Government to provide information, disaggregated by sex, on the number of men and women exercising the right to childcare leave set out in section 97 of the Labour Code, or requesting unpaid parental leave, flexible working time arrangements, reduced working hours or homework in order to better combine work with family responsibilities.

Equality of opportunity and treatment irrespective of race, colour and national extraction. Given the absence of legislative provisions expressly prohibiting discrimination in employment on the ground of “national extraction”, the Committee asked 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. According to the Government, under section 3 of the Law on Migration (2012), migration in Turkmenistan is governed by the principle of the prohibition of infringement of the rights and freedoms of individuals on the grounds of ethnicity, race, sex, origin, property, official position, place of residence, language, attitude to religion, political convictions, membership or non-membership of any political party or other grounds. The Government adds that the Law on Refugees (2017), provides that a person who has been granted the status of refugee is entitled to employment, use of health and social welfare services, on an equal footing with Turkmen nationals, unless otherwise specified by law. The Committee wishes to recall that, in the context of the Convention, discrimination on the basis of race is generally examined together with discrimination based on colour, since “colour” is one of the ethnic characteristics that differentiate human beings; and that, under the Convention the term “race” includes any discrimination against linguistic communities or minority groups whose identity is based on religious or cultural characteristics or national or ethnic origin. The Committee also recalls that national extraction covers distinctions made on the basis of a person’s place of birth, ancestry or foreign origin. The Committee therefore 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 aspects of employment and occupation, including in access to education in employment, in particular in the public sector. It also 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.

Article 3(a). Cooperation with employers’ and workers’ organizations. In this regard, the Committee notes the Government’s information that in October 2018, the Parliament (Mejlis) adopted the Law No.78-V0 setting up the Tripartite Commission for the Regulation of Social and Labour Relations, which main tasks are ,inter alia : (1) to conduct tripartite negotiations in compliance with labour law; (2) draft the annual General Agreement between the parties; (3) facilitate the regulation of social and labour regulations; (4) undertake consultations on drafts laws, regulations and state programmes concerning work, employment and social protection; and (5) study international protection and cooperate in this field with international organizations and bodies. The Committee observes that several meetings have been held and a work plan established for 2020. The Committee asks the Government to provide information on the activities carried out, in the framework of the Tripartite Commission for the Regulation of Social and Labour Relations, to promote the acceptance and observance of the national equality policy in employment and occupation.

Article 5. Restrictions on women’s employment. Previously, the Committee asked 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 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. The Committee notes the Government’s indication according to which, on 2 March 2019, section 243 of the Labour Code was amended to remove the existing prohibition on women’s employment in jobs with unsafe and/or unhealthy working conditions apart from in non-manual jobs or jobs in cleaning and staff welfare services. The Government adds that the Labour Code protects pregnant women and women who have children under the age of 18 months. While noting the information about the removal of the restrictions on women’s employment, the Committee asks the Government to provide a copy of the new text of sections 7(2), 242(2) and 243 of the Labour Code and section 6(3) of Law No.264-V to ensure that any restriction or limitation on the employment of women is strictly limited to maternity protection.

Enforcement and awareness-raising. In response to the Committee request for information on any awareness-raising activities on the principle of the Convention and assessment of the implementation of the legislative provisions and policy measures, the Government indicates that, in 2020, the Office of the Ombudsperson received 47 written communications (16 per cent of the total) and 29 verbal communications (12.8 per cent of the total) on employment related matters; most were connected with hiring, and as a result, disciplinary penalties were imposed on three officials. The Committee notes however that the Government does not indicate whether these cases concerned discrimination. The Government further adds that, under article 33 of the Law 476-V of 23 November 2016, one of the Ombudsperson’s priority areas of work is to assist in raising the public’s awareness of human rights. To this end, over the last three years, she has organized 18 seminars in every province to inform the public about national and international human rights law, including women’s rights, jointly with United Nations agencies and the Organization for Security and Co-operation in Europe. The Committee asks the Government to provide information on: (i) any awareness-raising activities on the provisions of the Convention and the legal framework in force regarding discrimination in employment and occupation on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, undertaken in collaboration with employers’ and workers’ organizations; and (ii) 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.