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

The Committee notes the Government’s first and second reports on the application of the Convention. Following their examination, the Committee wishes to draw the Government’s attention to the following matters.

Article 1, paragraph 1(a), of the Convention. Definition of discrimination. The Committee recalls that the definition of discrimination set out in Article 1 of the Convention covers direct and indirect discrimination. However, it notes that the term discrimination has not been defined in the legislation. The Committee therefore requests the Government to indicate whether the legislation covers indirect discrimination, and it also recommends that the Government considers including a definition of discrimination in the legislation.

Prohibited grounds of discrimination. The Committee recalls that under the Convention, ratifying Members are required to address discrimination based on race, colour, sex, religion, political opinion, national extraction and social origin. In this context, the Committee notes that section 12 of the Labour Law provides that “workers shall not be discriminated against in employment on the basis of their ethnic community, race, sex, or religious belief”. Section 3 of the Employment Promotion Law provides that “workers seeking employment shall not be subject to discrimination based on factors such as ethnicity, race, sex, religious belief, etc.”. The Committee requests the Government to indicate how the legislation in force ensures that discrimination based on all the grounds listed in Article 1(1)(a) is prohibited in respect to all stages of the employment process. In this regard, please also provide specific information on how workers are protected against discrimination based on colour, national extraction, social origin or political opinion.

Article 1, paragraph 1(b). Additional grounds. The Committee notes that Chinese laws and regulations address employment discrimination based on disability, HIV/AIDS, hepatitis B and other infectious diseases. The Committee requests the Government to continue to provide information on the measures taken to address discrimination on these grounds.

Article 1, paragraph 2. Inherent requirements of the job. The Committee notes that, according to the Government’s report, section 11 of the regulation Labour Market Management provides that “[w]hen recruiting a person, the employer shall not refuse to hire or raise thresholds of employment on the basis of gender, nationality, race or religious belief, unless otherwise prescribed by the state as unsuitable types of work or posts”. The Committee requests the Government to clarify whether these provisions permit exclusion from certain types of work on the basis of nationality, race or religious belief; if the answer is in the affirmative, please provide information on the specific types of work or posts which have been determined by the State as “unsuitable” in connection with nationality, race or religious belief, and elaborate on the reasons for doing so.

Article 2. Equality of opportunity and treatment of women and men. The Committee notes that the Labour Law, the Employment Promotion Law and the Law on the Protection of Women’s Rights and Interests provide the legal framework for addressing discrimination based on sex in employment and occupation, with the aim to achieving equality. The Committee also notes the information provided on measures taken to strengthen women’s participation in the labour market, including through vocational guidance and training and employment services. The Committee requests the Government to continue to provide information on the specific measures taken to promote and ensure women’s equality in employment and occupation in private and public employment, and in rural and urban areas. In this regard, the Committee requests the Government to provide detailed information on the measures taken to address horizontal and vertical occupational segregation based on sex and to promote greater access of women to better paid jobs. Please also provide updated statistical information on participation of women in employment in the different sectors and occupations.

Discrimination during recruitment and selection. The Committee notes that section 16 of the Regulation on Employment Service and Employment Administration provides that job descriptions and/or recruitment advertisements issued by employers shall not include discrimination content. Noting that discrimination during recruitment and selection is a form of discrimination particularly affecting women, the Committee encourages the Government to pay continued attention to this issue and to indicate any measures taken to prevent and eliminate such discrimination.

Discrimination based on pregnancy and maternity.  The Committee notes that several legal provisions seek to address discrimination against women based on pregnancy and maternity. For instance, section 27 of the Employment Promotion Law provides that employers shall not include restrictions in the employment contract regarding marriage or pregnancy. Section 42(3) of the Labour Contract Law prohibits the termination of labour contracts of women workers during pregnancy, post-natal and breastfeeding periods. The Committee requests the Government to provide more detailed information on the measures taken to address employment discrimination faced by women due to the fact that they bear children and are seen as primary care givers, including measures to ensure compliance with the legislation and to facilitate work and family balance, targeting both men and women.

Sexual harassment. The Committee welcomes that section 40 of the Law on the Protection of Women’s Rights and Interests, as amended in 2005, prohibits sexual harassment at work, although there is no definition of what constitutes such sexual harassment. The Committee encourages the Government, in collaboration with workers’ and employers’ organizations, to continue its efforts to put in place effective laws, policies and practical measures to prevent and address sexual harassment at the workplace, and to provide information on any further developments in this regard. Please also provide information on any cases of sexual harassment dealt with by the courts and the relevant Government departments.

Discrimination based on social origin. The Committee notes that section 31 of the Employment Promotion Law provides that rural workers seeking employment in urban areas shall enjoy the same labour rights as urban workers and prohibits discriminatory restrictions against them. The Committee also refers to its 2008 observation regarding the Employment Policy Convention, 1964 (No. 122), in which it noted that millions of internal migrant workers cannot obtain an urban residence and work permit (hukou) and recalls that the Committee on the Application of Standards of the International Labour Conference requested the Government to report under Convention No. 122 on the steps taken for the revision of the residence and work permit system, with a view to achieving a unified labour market. The Committee requests the Government to provide detailed information on the specific measures taken to ensure the effective enforcement of section 31 of the Employment Promotion Law, including indications regarding the number of cases of discrimination against workers from rural areas that have been dealt  with by the competent authorities.

Equality of opportunity and treatment of ethnic minorities. The Committee notes that section 29 of the Employment Promotion Law provides that workers of all ethnic groups enjoy equal labour rights and that employers shall give appropriate consideration to the recruitment of workers of ethnic minorities. The Law on Regional Ethnic Autonomy seeks to promote training and access to employment of men and women of local ethnic minorities in the organs of self‑government in autonomous areas. While noting these measures, the Committee requests the Government to provide information on the current situation of the various ethnic minorities in employment and occupation inside and outside the autonomous regions, including employment data disaggregated by sex and ethnicity.

Article 5. Special measures of protection. The Committee notes that under section 26 of the Law on the Protection of Women’s Rights and Interests, employment units shall not assign women “any work or physical labour not suitable for them”. Section 59 of the Labour Law prohibits arranging for women workers to work in mine pits, “or in work with Grade IV physical labour intensity as stipulated by the State, or other work that female workers should avoid”. The Employment Promotion Law permits employers to exclude women from recruitment if it relates to “types of work or posts that are not suitable for women as stipulated by the State”. Similar provisions are contained in section 16 of the Regulation on Employment Service and Employment Administration and section 11 of the Regulation on Labour Market Management. The Committee requests the Government to provide more detailed information on the specific types of work or posts that have been determined as “not suitable” for women and on the specific reasons and justification.

Supervision and enforcement. The Committee notes the information provided regarding the supervision of the non-discrimination provisions, including the possibility of workers bringing court cases and making requests for mediation or arbitration of labour disputes relating to discrimination. The Committee requests the Government to provide information on the number, nature and outcomes of cases based on the various prohibited grounds dealt with by the responsible government departments and courts, including information on the remedies provided or sanctions imposed.

General assessment. The Committee notes the Government’s indication that the elimination of discrimination in employment and occupation is considered to be a long-term task. The Government also states that it is necessary to further improve the legislation and relevant regimes for the promotion of equality and enhance law enforcement as well as supervision. It also considers strengthening advocacy and public awareness raising as important in order to achieve equality in employment and occupation. The Committee further notes that China has benefited from cooperation with the ILO over a number of years, most recently through a technical cooperation project aiming at strengthening the Government’s capacity to apply the Convention. The Committee encourages the Government to continue its efforts to strengthen its national laws and policies in accordance with the Convention and to continue to seek the ILO’s cooperation and assistance in this regard.