Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Legislative developments. Prohibition of discrimination. The Committee notes that the Labour Code adopted in 2006 provides in section 2(3) that “any type of discrimination due to race, colour, ethnic and social category, nationality, origin, property and position, residence, age, gender, sexual orientation, limited capability, membership in a religious or other union, family conditions, political or other opinions is prohibited in employment relations”. While noting that this provision covers all the grounds of discrimination listed in Article 1(1)(a) of the Convention, the Committee also notes that by referring to discrimination “in employment relations” it does not appear to prohibit discrimination that occurs during selection and recruitment, including job advertisements. Noting that under section 5(8) of the Labour Code the employer is not required to give reasons for his or her decision when a candidate is not hired, the Committee is concerned that this provision may effectively bar candidates from successfully bringing discrimination cases. The Committee recalls that, by ratifying the Convention, the Government has undertaken to address direct and indirect discrimination in respect to all aspects of employment and occupation, including access to employment and particular occupations (Article 1(3)). The Committee therefore requests the Government to provide the following information:

(i)    whether and how the Labour Code or any other legislation provides protection from discrimination with regard to access to employment and particular occupations, including discriminatory recruitment practices;

(ii)   whether section 2(3) of the Labour Code is intended to prohibit direct and indirect discrimination and to indicate whether consideration is being given to including definitions of direct and indirect discrimination into the legislation;

(iii) the procedures and mechanisms available to lodge complaints concerning discrimination in employment and occupation, including complaints to contest recruitment decisions that are allegedly discriminatory, and to provide information on any cases that may have been decided concerning sections 2(3) and 5(8) of the Labour Code.

The Committee is raising other points in a request addressed directly to the Government.