Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s first report which contains detailed information on the economic situation of the country and the legal framework on employment and labour. While awaiting translation of some of the relevant provisions of labour legislation relating to the Convention, the Committee requests the Government to provide further information on the following points.

Article 1(1)(a) and (b) of the Convention. Prohibition of discrimination. Legislation. The Committee notes that the Constitution provides for equality of individuals and citizens before the law regardless of their nationality, race, gender, origin, property and official status, place of residence, language, religion, political beliefs, party affiliation or lack of affiliation to any party. It also notes that section 7(1) of the Labour Code provides that “no restriction with respect to employment rights or the granting of any advantages is permitted on the basis of nationality, race, sex, origin, property or employment status, place of residence, language, attitude to religion, political convictions, party affiliation or non-membership of any party, or other factors unrelated to the abilities and performance of workers”. The Committee notes that the Labour Code refers specifically to some of the grounds enumerated in Article 1(1)(a) of the Convention, namely race, sex, religion and political opinion. It also refers to additional grounds, as foreseen in Article 1(1)(b) of the Convention, including origin, property or employment status, place of residence, language, party affiliation or non-membership of any party. The Committee observes however that it is unclear whether section 7(1) covers indirect discrimination, which is discrimination that occurs when the same condition, treatment or criteria are applied to everyone but results in a disproportionately harsh impact on specific groups or individuals protected by the Convention, and is not closely related to the inherent requirements of the job. With respect to the non-discrimination provisions of the Labour Code, the Committee requests the Government to provide clarifications on the following points:

(i)    whether the protection of workers against discrimination applies to all aspects of employment, including access to vocational training, access to employment (recruitment) and to particular occupations, and terms and conditions of employment;

(ii)   whether the non-discrimination provisions apply to all workers, including civil servants; and

(iii)  how the protection of workers against indirect discrimination is ensured.

While noting that section 7(1) of the Labour Code prohibits discrimination on the basis of “other factors unrelated to the abilities and performance of workers”, the Committee requests the Government to consider the possibility of including provisions referring explicitly to the prohibition of discrimination based on colour, national extraction and social origin, in line with Article 1(1)(a) of the Convention. Please also provide information on the practical application of the non-discrimination provisions of the Labour Code, including examples of “other factors” referred to in section 7(1) that have been considered discriminatory by the enforcement or judicial authorities.

Discrimination on the basis of sex. Sexual harassment. With reference to its general observation of 2002, the Committee requests the Government to provide information on the measures taken to prohibit and prevent sexual harassment at work. Please also provide information on any cases of sexual harassment dealt with by the competent authorities.

Article 1(2). Inherent requirements of a particular job. The Committee notes that, according to section 7(2) of the Labour Code, “any distinction in employment justified by inherent requirements of the job … is not considered to be discrimination”. The Committee requests the Government to provide information on the practical implementation of this provision, including any judicial decisions interpreting the concept of “inherent requirements of the job”.

Article 2. Equality of opportunity and treatment of men and women. The Committee notes that, according to the Act No. 154 of 14 December 2007 on state guarantees for equal rights for women, any discrimination on the basis of sex is prohibited (section 12(1)) and women have the same rights as men with respect to work protection, employment, entrepreneurship, access to posts, equal remuneration for work of equal value, occupational safety and health, promotion, training and family responsibilities (section 12(2)). The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed its deep concern about the persistence of patriarchal attitudes and deep-rooted stereotypes regarding the roles and responsibilities of men and women in the family and the society, which are a root cause of the disadvantaged position of women in a number of areas, including in the labour market (CEDAW/C/TKM/CO/2, 2 June 2006, paragraph 14). Furthermore, CEDAW also noted with concern the low percentage of women in higher education and the persistent stereotyping that results in women pursuing careers in areas traditionally seen as suitable for them (paragraph 30). In this respect, the Committee notes that the statistics on education, vocational training and employment provided by the Government in its report are not disaggregated by sex, and therefore do not enable the Committee to have a clear overview of the situation of women in these areas. The Committee therefore requests the Government to provide detailed information on the situation of men and women with respect to their participation in employment and occupation. This information should include statistical data on the following:

(i)    the participation of men and women in the various disciplines of secondary and higher education, vocational training and other forms of skills development;

(ii)   employment and unemployment of men and women; and

(iii)  the participation of men and women in employment in the various sectors of the economy, occupations and levels of responsibility.

The Government is also requested to provide information on the practical measures taken to combat sexist stereotypes relating to the roles and skills of men and women in employment and in the society and to effectively promote access by women to a wider range of occupations, including awareness-raising activities and educational programmes regarding gender equality.

The Committee notes that Chapter I of Part XIII of the Labour Code contains measures applying to persons with family responsibilities, a number of which concern only women workers with children (prohibition of overtime, night work, work during week-ends and public holidays; and travel restrictions). While noting that such provisions may be well-intentioned and seen as corresponding to the needs of women who continue to bear the unequal burden of family responsibilities, the Committee considers that they may also raise issues with respect to equality of opportunity and treatment. Such provisions may reinforce and prolong social attitudes and stereotypes that hinder the realization of gender equality, while, at the same time, excluding men from certain rights and benefits. The Committee requests the Government to elaborate on its views concerning the compatibility of these provisions with the principle of equality of opportunity and treatment, and on whether any measures are being taken to ensure that arrangements and entitlements aimed at reconciling work and family responsibilities are made available to women and men on an equal footing.

Article 2. Equality of opportunity and treatment with respect to grounds other than sex. The Committee notes that the Labour Code prohibits discrimination based on certain grounds, including nationality, race, origin, property or official status, place of residence, language and attitude to religion. The Committee further notes from the Government’s report that, according to the Law on Employment, the State’s policy in the field of employment shall ensure equal opportunities for all citizens regardless of race, sex, attitude to religion, age, political convictions, nationality or social position (section 4) and guarantee protection against any form of discrimination and equality of opportunity for all citizens in finding an occupation and a job (section 11).

The Committee notes that in its concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed its deep concern as regards “consistent information relating to the policy of “Turkmenization” conducted by the State party, and implemented through various measures in the field of employment, education and political life. Furthermore, CERD expressed concern regarding the “severe restrictions” faced by national and ethnic minorities on their participation in the labour force, in particular in public sector employment (CERD/C/TKM/CO/5, 27 March 2007, paragraphs 12 and 13).

The Committee requests the Government to provide full particulars in its next report on the concrete measures taken to ensure and promote in practice equality of opportunity and treatment in all aspects of private and public employment, including recruitment, without distinction based on the grounds of race, religion and national extraction. The Government is also requested to provide detailed information on any restrictions imposed in practice on members of national and ethnic minorities with respect to access to education, training and employment in both the private and the public sectors, and on concrete measures taken to ensure their protection against direct and indirect discrimination in employment and occupation. Please provide statistical information on the labour market participation (public and private sectors) and in all levels of education of members of minorities.

Article 3(a). Cooperation with workers’ and employers’ organizations. The Committee requests the Government to provide information on any steps undertaken to seek the cooperation of workers’ and employers’ organizations in promoting the acceptance and observance of a policy promoting equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

Article 5. Special measures of protection. The Committee notes that, according to section 7(2) of the Labour Code, 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 requests the Government to provide information on the practical application of section 7(2) of the Labour Code, in particular on any specific protective measures relating to employment and occupation as well as any affirmative action or other measures taken to promote the access of specific groups to employment and occupation, and their results. The Committee also requests the Government to provide detailed information on the list of jobs with harmful working conditions prohibited for women referred to in section 243 of the Labour Code, established by decision of the Cabinet of Ministers.

Parts III–V of the report form. The Committee notes that in accordance with section 404 of the Labour Code, the enforcement of the labour legislation is entrusted to a specialized public body, the trade unions, the technical and labour inspectorates, the local governments and responsible ministries. The Committee requests the Government to provide information on the enforcement activities of these bodies and organizations with respect to discrimination in employment and occupation. Please also provide information, including studies and official reports as well as statistics disaggregated by sex, which could help the Committee to gain a general appreciation of the application of the Convention