Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Hongrie (Ratification: 1961)

Autre commentaire sur C111

Observation

Demande directe

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Legislative developments. The Committee notes that the new Fundamental Law of Hungary, adopted on 25 April 2011, entered into force on 1 January 2012. Article XV of the Law provides for equality before the law, guarantees fundamental rights to every person without any discrimination on the grounds of race, colour, sex, disability, language, religion, political or other views, national or social origin, financial, birth or other circumstances whatsoever, and provides for the adoption of special measures to promote the implementation of legal equality. Section 30 establishes the Commissioner for Fundamental Rights. The Committee also notes the adoption of the new Labour Code which came into force on 1 January 2012 (Act I of 2012). Section 12 provides that “in connection with employment relationships, such as the remuneration of work, the principle of equal treatment must be strictly observed”. However it appears that parties can derogate from the principle of equal treatment, given that there is no prohibition to derogate (unlike that set out in sections 35 and 50) and section 9 allows for the waiver of the personal rights of workers (but not in advance). The Committee considers that sections 8 (protection of legitimate economic interests of the employer) and 10 (disclosure of personal information) could also impact negatively on the right to non-discrimination. The Committee also notes that the Labour Code does not enumerate prohibited grounds of discrimination nor does it refer in that sense to the Equal Treatment Act (notably section 8). The Committee asks the Government to indicate the manner in which the protection of workers is ensured, in law and in practice, against discrimination on at least all the grounds enumerated under Article 1(1)(a) of the Convention and in all aspects of employment and occupation. The Committee also asks the Government to provide information on the application of sections 8, 9 and 10 of the Labour Code and on any impact of these provisions on the right to non-discrimination. Please also provide information on any special measures adopted with a view to promoting legal equality, in accordance with article XV of the Fundamental Law of Hungary.

Sex discrimination. The Committee notes that under section 294 of the new Labour Code, “the mandatory medical examination” is defined to mean a medical examination that the worker is required to undergo according to employment regulations and includes the examination prescribed for pregnant women. The Committee asks the Government to clarify whether the examinations prescribed for pregnant women under section 294 would permit pregnancy testing.

Sexual harassment. In its previous comment, the Committee noted that the low number of sexual harassment cases submitted to the Equal Treatment Authority may suggest that women encounter difficulties in practice in having access to the remedies provided by the Authority. Further, noting the difficulties faced by the Authority in investigating complaints related to harassment, the Committee asked the Government to provide information on any measures taken to address such issues. The Committee notes from the Government’s report that to ease the evidential burden, the Equal Treatment Authority accepts audio recordings provided by the complainant as evidence, even without the knowledge or consent of the other party (EBH2000.296). The Government also indicates that pursuant to section 39/A of Act CXL of 2004 on the General Rules of Administrative Proceedings and Services, the Authority ensures the anonymity of witnesses in proceedings so as to prevent any reprisals by the employer. The Committee asks the Government to continue to provide information on any measures taken or envisaged with a view to protecting victims of and witnesses to sexual harassment and to facilitating access to the remedies provided by the Equal Treatment Authority. Please also provide information on any measures taken or envisaged to raise awareness of workers, employers and their organizations of the Authority’s role with respect to addressing sexual harassment.

Equality of opportunity and treatment of men and women. The Committee notes that under the National Strategy for the Promotion of Gender Equality, a biennial action plan for 2010–11 was adopted by the Government. The stated objectives of such plan include stimulating the participation of disadvantaged women in the labour market, analysing the implementation and impact of the legal obligation of part-time employment in the public sector, assessing the situation of single mothers in the labour market and further implementing the Family Friendly Workplace programme. The Government indicates that no data on the impact of such plan is available but that a national consultation was held in 2011 with governmental support to present an overview of the measures implemented and of further action to be taken in the following areas: advantages and disadvantages of part-time work; proposals to address obstacles to the employment of working lone parents; inclusion and training in elderly care of inactive workers; impact assessment of the childcare support system and health insurance provisions relating to childcare. Furthermore, the Committee notes that as part of the EQUAL Community Initiative Programme, five projects, developed as part of the programme “Gender gap in the labour market and reduction of employment segregation – H”, are being implemented. The Committee asks the Government to continue to provide information on the implementation of the National Strategy for the Promotion of Gender Equality and of the biennial action plan, as well as on the impact on the promotion of equal opportunities for men and women in employment and occupation. Please also provide information on any measures taken or envisaged to address occupational segregation and on any progress made in establishing an institutional system for coordinating, implementing, monitoring and evaluating the National Strategy for the Promotion of Gender Equality.

Equality of opportunity and treatment of the Roma. In its previous comment, the Committee noted the implementation of the Decade of Roma Inclusion Programme (2005–15) through a Strategic Plan which set overall objectives in education, employment, housing and health care with a view to promoting the social integration of the Roma. The Committee notes from the Government’s report that as part of the two-level monitoring system, the Government presented its first biennial report to the Parliament in 2010 and that independent research on the impact of the measures was planned to be conducted in 2011 and 2015. The Committee also notes the report of the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and the comments made by the State on this report (A/HRC/20/33/Add.1 and A/HRC/20/33/Add.3). It notes that under the EU Framework for national Roma integration strategies, the Government rolled out the “National social inclusion strategy – Extreme poverty, child poverty, the Roma – (2011–20)” which sets out priority action and quantified targets, notably in the fields of employment and education (A/HRC/20/33/Add.1, paragraphs 30 and 32). Such objectives, which are also laid down under the Framework Agreement between the Government and the national Roma self-government, include the involvement of 100,000 unemployed Roma in the labour market, the promotion of the participation of 50,000 Roma adults in marketable vocational trainings, the realization of a comprehensive education reform which will result in 20,000 young Roma people learning marketable skills in one of the 50 vocational schools taking part in the inclusion programme, and support for the education of 15,000 Roma young people in high schools. The Committee also notes that a Roma Coordination Council was set up to ensure non-governmental participation in the elaboration, implementation and monitoring process of the National Strategy. It further notes that some objectives are to be achieved by 2015 and that the first monitoring report has been prepared. With regard to educational measures, the Committee notes from the Government’s report the implementation of the “Arany Jànos Programme for gifted students with disadvantages” (AJTP) and of the “Money for the Journey Scholarship Programme” which both aim to create educational opportunities for talented students facing social disadvantages, including Roma youth. The Committee also notes from the conclusions of the European Commission against Racism and Intolerance (ECRI) that local authorities and local governments are required to adopt a public education equal opportunity plan (CRI(2012)8, paragraph 2). While noting the numerous measures taken by the Government to promote equal opportunities for the Roma, the Committee notes from the report of the Special Rapporteur that the situation of the Roma has worsened in recent years and that deeply rooted negative viewpoints and stereotypes continue to hinder access of the Roma to employment (A/HRC/20/33/Add.1, paragraph 29 and Research report of the Equal Treatment Authority on recruitment in the mirror of discrimination, p. 5). The Committee also notes the Special Rapporteur indicates that the majority of the Roma continue to be largely unemployed (70 per cent) and dependent on social benefits. Public jobs available to the Roma are scarce, short-term, low-skilled and low-paid (A/HRC/20/33/Add.1, paragraph 37). With regard to access to quality education, the Committee notes from the resolution on the implementation of the Framework Convention for the Protection of National Minorities by Hungary that the Committee of Ministers of the Council of Europe expressed deep concern with regard to the segregation of Roma pupils at school and their over-representation in special schools (CM/ResCMN(2011)13). In this regard, the ECRI reported that in 2010 there were 3,000 Roma pupils in segregated classes (CRI(2012)8, paragraph 2). The Committee further notes from the report of the United Nations Special Rapporteur that national authorities acknowledged the lack of implementation of the policies developed for the Roma and admitted that pilot projects set up in this framework had not been fully implemented (A/HRC/20/33/Add.1, paragraph 31). The Committee asks the Government to continue to provide information on the concrete measures taken to improve the social inclusion of the Roma, to promote equality of opportunity and treatment of the Roma in education, employment and occupation and to combat negative stereotypes and anti-Roma sentiments, as well as on the results achieved. The Committee strongly encourages the Government to take all the necessary actions to fully implement the strategies and programmes adopted and to monitor closely the situation of the Roma. The Committee also asks the Government to provide information on the measures taken to promote and develop dialogue and cooperation with representatives of the Roma minority, including through the Roma Coordination Council. Noting the Government’s indication that an amendment to the Equal Treatment Act is currently being prepared with a view to involving relevant stakeholders in the development of equal opportunity policies for the Roma, the Committee asks the Government to provide information on any progress made in this regard.

The Committee notes the information contained in the report of the United Nations Special Rapporteur concerning a public work programme implemented in Gyöngyöspata under which “Roma have to work in inhuman circumstances under the surveillance of guards while receiving low salary for such jobs” (A/HRC/20/33/Add.1, paragraph 37). The Committee understands that 36 of the 40 people working in such programmes are Roma. It also understands that a plan approved by the Parliament in July 2011 provides for the implementation of such public work programmes throughout the country and requires anyone who receives unemployment benefits to work in community service jobs. In case of refusal, the payment of allowances will be terminated. Bearing in mind that the Roma community faces high unemployment levels and is heavily dependent on social benefits, the Committee asks the Government to provide information on the implementation of such public work programmes and the impact on the Roma.

Article 1(1)(b) of the Convention. Workers with disabilities. The Committee notes the detailed information provided by the Government with regard to the measures taken to foster the access of persons with disabilities to higher education and vocational training programmes. It also notes from the statistics compiled by the Interim Survey of the Hungarian Central Statistical Office on hiring in autumn 2008 that 22.8 per cent of persons aged 18 and 64 declared permanent health problems of which 53.4 per cent reported altered working abilities. The survey also revealed that the activity rate of persons with disabilities was 27.4 per cent while that of persons with full capacity to work reached 72.7 per cent. Similarly, the employment rate of persons with altered working abilities remained low (23 per cent) as compared to persons with full working abilities (67.3 per cent). However the Government points out that such rate increased significantly in the last decade (from 9–13 per cent in 2001). The Committee further notes from the Government’s report that the “Promotion of the rehabilitation and employment of people with reduced capacity to work” (Social Renewal Operational Program TÀMOP 1.1.1 project), which aims at enhancing the employability of such workers, benefited 14,806 persons. The Committee asks the Government to continue to provide information on the implementation of the project on the “Promotion of the rehabilitation and employment of people with reduced capacity to work” and on the results achieved. Please also provide information on the impact of decision No. 39/2011 (V.31.) of the Constitutional Court with regard to the failure of the Parliament to establish legal conditions and guarantees of employment of persons with disabilities.

Article 2. Equal opportunity plans. In reply to the Committee’s previous request for information on the content and the number of equal opportunity plans developed in accordance with section 63(4) of the Equal Treatment Act, the Government indicates that in conducting investigations pursuant to section 14(1) of the same Act, the Equal Treatment Authority verifies only that such plans have been adopted; therefore, it does not collect data on the number of employers having approved an equal opportunity plan, nor does it review the content of such plans. The Committee recalls its previous comment in which it noted that the number of proceedings launched by the Equal Treatment Authority in order to inspect budgetary authorities and legal entities subject to the obligation to draw up an equal opportunity plan remained low. The Committee further notes from the study “Impact of the Equal Opportunity Plan – Summary and Recommendations” of 2011 that while 78 to 84 per cent of public institutions have adopted an equal opportunity plan, only 31 per cent of businesses in the private sector comply with their legal obligation. The study further revealed that overall employers consider equal opportunity plans unnecessary and adopt such plans only to be in good standing with their legal obligation or to increase their chances of being selected in tenders. Moreover, workers’ awareness with respect to the adoption and implementation of such plans in their workplace is limited. In its conclusions, the study recommends taking action to sensitize and to provide training to both employers and workers regarding the Equal Treatment Act and the rights and obligations stemming from it. The Committee asks the Government to provide information on any follow-up action given to the recommendations of the abovementioned study so as to improve compliance with the legal obligation to develop equal opportunity plans, including any sanctions imposed by the Equal Treatment Authority pursuant to section 16(5) of the Equal Treatment Act. Please also provide information on any measures taken or envisaged to sensitize employers and workers to the need to implement equal opportunity plans and to encourage their participation in creating a gender-sensitive workplace.

Article 3(a). Cooperation with the social partners. The Committee recalls its previous comment in which it noted that under section 14(1)(f) of the Equal Treatment Act, the Equal Treatment Authority is required to cooperate with the social partners in its activities. The Government indicates that in disseminating information on the equal treatment legislation and practice, the Equal Treatment Authority specifically targets employers’ and workers’ organizations. Under the TÀMOP 5.5.5 project, the Equal Treatment Authority has so far provided 22 training activities benefiting 55 participants from either employers’ or workers’ organizations. Sixteen information and awareness-raising presentations were given to employers and workers by equality referees. The Committee also notes that sensitization of workers to discriminatory practises in the workplace and information on the remedies provided under the Equal Treatment Act was furthered by the distribution of the “Discrimination and work” publication. Furthermore, trade union representatives participated in biennial experience exchange meetings aimed at disclosing information on the results of the TÀMOP 5.5.5 project and the achievement of short-term objectives. With regard to the “Road to work” programme which aims at improving the employability of the long-term unemployed and workers with altered working abilities and at facilitating their reintegration into the labour market, the Government indicates that a public works plan was developed in close collaboration with the social partners and local authorities. The Committee asks the Government to provide information on any measures taken to further develop and strengthen the involvement of the social partners in the activities of the Equal Treatment Authority. Please also provide information on the implementation of the “Road to work” programme and the public works plan elaborated, as well as on the impact on the employment of workers with altered working abilities.

Article 5. Special measures. The Committee understands from the Government’s explanation that the “wage support system” which allowed persons with altered working abilities to have permanent employment was initially suspended in 2009 by Government Decree 168/2009 and was then terminated in 2011 due to the impact of the economic crisis. Moreover, in its previous comments, the Committee noted that employers employing more than 20 workers are required to ensure that at least 5 per cent of their employees are workers with altered working abilities or shall pay a rehabilitation contribution. In its report, the Government indicates that it has no information on the progress made in enforcing such obligation but that in 2011 the scope of such measures was extended to temporary agencies and secondment contracts. The Committee also notes that pursuant to section 113 of the new Labour Code, overtime and standby work cannot be ordered for women, even with their consent, until their child reaches 3 years of age. The Committee asks the Government to continue to provide information on the implementation of the “5 per cent target” obligation as well as on any other measures taken or envisaged with a view to fostering the integration of workers with altered working abilities in employment and occupation. The Committee also asks the Government to consider extending the prohibition of overtime and standby work to men with children under 3 with a view to facilitating work and family responsibilities for both men and women.

Parts III and IV of the report form. Equal Treatment Authority. The Committee notes from the activity report of the Equal Treatment Authority that it received nearly 1,500 complaints in 2010 and launched proceedings in 377 cases. The Authority found discrimination in 40 cases of which 24 were employment-related. Some 244 cases were still pending in 2011. The Government indicates that the vast majority of complaints are related to access to employment, job interviews and termination of employment in the private sector. Age, gender, maternity and ethnic or social origin (Roma minority) were among the most frequently cited grounds of discrimination. The Committee further notes that under the TÀMOP 5.5.5 project entitled “Combating discrimination, shaping societal attitudes and strengthening the work of the Authority”, the Authority provides training aimed to sensitize participants to the various forms of discrimination, to the rights of victims under the Equal Treatment Act and to the remedies to enforce such rights. Seventy training sessions were to be organized between 2010 and 2013. The Committee also notes that in 2009, the Authority set up a nationwide network of equality referees. In 2010, referees provided legal advice to 1,116 persons and drafted 149 petitions. The Committee however notes from the research survey annexed to the report, entitled “The extent of gaining knowledge of one’s rights as a victim of discrimination”, that almost 75 per cent of the Roma respondents have already been victims of racial discrimination, 66 per cent have suffered disadvantages on grounds of colour and 50 per cent on grounds of their low socio-economic status. However, a vast majority of Roma respondents declare that they have never voiced their concern or reported discrimination cases, either in the family circle or to the competent public authorities due to a limited knowledge of the legislation and the limited role of the Equal Treatment Authority. The Committee strongly encourages the Government to take the necessary measures to raise awareness of the population, including the Roma community, regarding the access to and the remedies provided by the Equal Treatment Authority and to report on any progress made. Please also continue to provide information on the activities of the Equal Treatment Authority, including the implementation of the TÀMOP 5.5.5 project, and the results achieved.

Enforcement. The Committee recalls that for a number of years it has drawn the Government’s attention on the limited competencies of the Labour inspectorate which can only act upon the lodging of a complaint and is not authorized to address violations of the equal treatment legislation on a routine basis. In its previous comment, the Committee noted that the Government did not intend to review section 3(2) of Act LXXV of 1996 in order to expand the mandate of the labour inspectors. The Government indicates in its report that the labour inspectorate forwards complaints related to the Equal Treatment Act to the Equal Treatment Authority, unless the complaint is anonymous in which case the labour inspection services deal with it. However there is no exchange of information between the Equal Treatment Authority and the labour inspectorate with regard to the respective action taken in the field of equal treatment. The Committee also notes from the Government’s report under the Equal Remuneration Convention, 1951 (No. 100), that with respect to tenders, the labour inspectorate publishes on its website the list of employers in violation of the equal treatment legislation and sanctioned repeatedly in the two years prior to their submission. According to the Government’s report, during the reporting period, the labour inspectorate did not take any measures concerning any infringements to the equal treatment legislation. The Committee also notes the Government’s explanation concerning the role of trade unions in bringing complaints to the attention of the Equal Treatment Authority. Emphasizing once again the crucial role of the labour inspectorate in enforcing the principle of equal treatment and in combating discrimination in employment and occupation, the Committee requests the Government to take the necessary measures to sensitize workers and their organizations to the dispute resolution procedures and remedies available, including those provided by the labour inspectorate and the Equal Treatment Authority under the equal treatment legislation, to ensure access to such remedies and to ensure workers lodging complaints are effectively protected against victimization. Please also provide information on cases related to the principles of the Convention that have been dealt with by the labour inspectorate, the Equal Treatment Authority, or the courts, as well as regarding any complaints brought before the Commissioner for Fundamental Rights established under article 30 of the Fundamental Law of Hungary, and the results thereof.