Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

Articles 2 and 5 of the Convention. Gender equality and special measures of protection. The Committee recalls its comments regarding Resolution No. 162 adopted by the Government on 25 February 2000 which contains a list of industries, occupations and work from which women are excluded. The Resolution excludes women from being employed in 456 occupations in 38 sectors of industry. In its report, the Government states that the list contained in Resolution No. 162 is in accordance with section 253 of the Labour Code which provides that “the use of labour of women in arduous work and work in harmful and/or dangerous conditions, and also in underground work, except for non-physical work or work with regard to sanitary and domestic servicing, shall be limited”. The Government states that the list contained in Resolution No. 162 has been established on the basis of consultations with representatives of scientific and research institutes and that every restriction has been medically justified. The Government confirms that the list’s intention was not specifically to protect women’s reproductive health, but more broadly to “exclude women from such working conditions which generally do not correspond to the requirements of life and health protection of workers”. The Government points out that, in accordance with Resolution No. 162, the employer may decide to assign women to work included on the list provided that the employer creates safe working conditions and these are certified as safe by the competent state authorities. In the Government’s view, Resolution No. 162 did not require any changes as it did not establish unjustified restrictions.

The Committee maintains that Resolution No. 162 raises issues with regard to equality of opportunity and treatment in employment and occupation of men and women. It recalls that the Convention aims at promoting and ensuring equality of men and women, inter alia, in respect of terms and conditions of employment, including regarding occupational safety and health measures. The Convention therefore requires the Government to provide occupational safety and health protection to men and women on an equal footing. However, the approach embodied in Resolution No. 162 raises doubts as to whether adequate measures are being taken to provide such equal protection. Further, the Committee recalls that, where special measures of protection for women within the meaning of Article 5 of the Convention are being taken, it must be ascertained that exclusions from employment opportunities are limited to cases where this is strictly necessary to protect women’s reproductive health and that the measures are proportional to the nature and the scope of the protection needed. The Committee considers that the exclusion of women from any work or employment due to arduous, hazardous or dangerous working conditions that involve equal risks for men and women goes beyond what is permitted under Article 5. On this basis, the Committee also remains concerned that broad exclusions from employment opportunities due to occupational safety and health concerns that only apply to women not only have a discriminatory effect on women’s equality in the labour market, but may also hinder further progress in providing healthy and safe working environments to men and women. The Committee therefore urges the Government to take the necessary steps to review the current system of protective measures excluding women from employment opportunities with a view to ensuring equal opportunities for women and men and equal protection of health and safety, and provide information on the action taken in this regard. Please also include information on the measures taken to consult workers’ and employers’ organizations and the results of such consultations.

Enforcement of the Labour Code’s non-discrimination provisions. The Committee previously noted that, following the 2006 amendments to the Labour Code, persons considering themselves to be discriminated against in the sphere of labour can no longer petition the labour inspectorate. In this connection, the Committee notes the Government’s explanation to the effect that due to the special nature of labour disputes regarding discrimination, it was considered preferable to have such matters decided by the courts through civil legal proceedings, rather than by the labour inspectorate through administrative proceedings. Accordingly, the legislation does not permit the Federal Service on Labour and Employment to settle disputes regarding discrimination. The Committee requests the Government to provide information on the number of cases concerning discrimination in employment and occupation brought before the court under the Labour Code, and on the outcome of such cases. In addition, noting that the broad mandate of the Federal Service on Labour and Employment would not appear to exclude it from providing information and at least advice on the prohibition of discrimination to workers and employers, the Committee requests the Government to provide information on any measures taken to strengthen the capacity of labour inspectors to provide such advice.

Articles 2 and 3. Equality of opportunity and treatment of men and women. The Committee notes from statistical data compiled by the ILO that in 2008 the rate of economically active women (over 15 years of age and older) was 56.1 per cent, compared to a rate of 70.4 per cent for men. The Committee notes that the labour market in the Russian Federation remains highly segregated, with women being concentrated in clerical occupations and underrepresented in senior positions. The Committee also notes that the Government’s report contains no reply to the Committee’s previous comments requesting information on the measures taken to promote equal opportunities of men and women in employment and occupation, including information on the specific steps taken to ensure that men and women have equal access to employment in the broadest possible range of sectors and industries, as well as at all levels of responsibility. The Committee therefore reiterates its request to the Government to supply the requested information, as well as updated detailed statistical information on the distribution of men and women in the different sectors and industries, as well as levels of responsibility.

The Committee notes the Government’s confirmation that a draft Federal Law on state guarantees of equal rights and freedoms and equal opportunities for men and women in the Russian Federation has been adopted by the State Duma in a first reading. However, the report highlights that a number of issues have arisen in the course of the elaboration of the draft Law. More specifically, the Government indicates that some of the provisions should rather be included in the federal Constitution. The Government also notes that there are overlaps with legislation already in force and uncertainties as to which government body would be in charge of supervision. The Government adds that it would be preferable to introduce amendments to the Labour Code instead. The Committee hopes that further efforts will be made to strengthen the legal framework in the Russian Federation to promote and ensure gender equality in employment and occupation and requests the Government to provide information on the measures taken and progress made in this regard.

Equality of opportunity and treatment of ethnic minorities and indigenous peoples. In its report, the Government refers to the Constitution which requires the State to guarantee the equality of human and citizens’ rights, regardless of race, nationality, language, origin, place of residence, religion and prohibits “all forms of limitations of human rights on social, racial, national, linguistic or religious grounds” (article 19). The Government also acknowledges that a number of constituent republics of the Russian Federation are built on “national and territorial principles”, which explains some of the problems in these republics with regard to preferences being given to people belonging to the locally predominant ethnic group. The Government considers that these problems cannot be overcome by legal means. It states that with a view to overcoming “discriminatory trends in the field of employment and occupation” and to build harmonious inter-ethnic relations, it is necessary to encourage ethnic associations created under the Federal Law on National and Cultural Autonomy, 1996, to participate in addressing these problems. In this connection, the Committee also notes that the UN Committee on the Elimination of Racial Discrimination has recently recommended that measures be taken to address discrimination against ethnic minority workers in respect of recruitment (CERD/C/RUS/CO/19, 20 August 2008, paragraph 25). The Committee welcomes the Government’s acknowledgement that there is a need for measures promoting non-discrimination in employment and occupation based on ethnic or national origin and to promote tolerance between the various ethnic groups in the country. The Committee shares the Government’s view that promotional measures involving civil society organizations is important, but it also stresses the need to provide effective legal protection from discrimination. The Committee recommends that measures be taken to strengthen the enforcement of the Labour Code’s provision on non-discrimination, with particular emphasis on discrimination on racial or ethnic grounds. It requests the Government to continue to provide information on the measures taken to promote and ensure equality of opportunity and treatment of ethnic minorities through promotional measures as well as effective enforcement of the legislation. It reiterates its request to the Government to provide information with regard to equal opportunities and treatment in employment and occupation of the indigenous peoples.

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

[The Government is asked to supply full particulars to conference at its 99th Session and to reply in detail to the present comments in 2010.]