Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Tadjikistan (Ratification: 1993)

Autre commentaire sur C111

Observation

Demande directe

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The Committee notes with regret that the Government’s report once again contains no information to a number of its previous comments. The Committee wishes to reiterate that without the necessary information, it is not in a position to assess the effective implementation of the Convention, including the progress achieved since its ratification. It hopes that the next report will contain full information on the matters raised below.

Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee notes the adoption of the new Labour Code of the Republic of Tajikistan dated 23 July 2016, No. 1329 (the Labour Code 2016), and notes that section 7 of the Labour Code 2016 prohibits discrimination in employment on a number of grounds, namely nationality, race, gender, language, religion, political beliefs, social status, education, and property. The Committee notes with regret that the grounds of “colour” and “social origin”, which were prohibited grounds of discrimination in the 1997 Labour Code, are no longer covered by section 7 in the Labour Code, 2016. The Committee recalls that “social status” appears to be narrower than the term “social origin” set out in Article 1(1)(a) of the Convention. The Committee recalls that when legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention (see 2012 General Survey on the fundamental Conventions, paragraph 854). The Committee therefore requests the Government to provide information on the steps taken or envisaged to amend the legislation to prohibit discrimination on all of the grounds set out in Article 1(1)(a) of the Convention, including colour and social origin.

Discrimination based on sex. Sexual harassment. In its previous comments, the Committee requested the Government to provide information on the measures taken to prevent and address sexual harassment at work. It notes the Government’s indication, in its report, that under section 140 of the Criminal Code, it is a criminal offence to compel another person into sexual relations, by threatening to destroy, damage or seize property, or by taking advantage of any work-related, material or other dependence of the victim. However, the Committee recalls that addressing sexual harassment only through criminal proceedings is not sufficient, due to the sensitivity of the issue, the higher burden of proof, which is harder to meet, especially if there are no witnesses (which is often the case), and the fact that criminal law generally focuses on sexual assault or “immoral acts”, and not the full range of behaviour that constitutes sexual harassment in employment and occupation. In this respect, the Committee considers that without a clear definition and prohibition of both quid pro quo and hostile work environment sexual harassment, it remains doubtful whether the legislation effectively addresses all forms of sexual harassment (see 2012 General Survey on the fundamental Conventions, paragraphs 789–794). The Committee therefore recalls its general observation highlighting the importance of taking effective measures to prevent and prohibit sexual harassment at work, in civil or labour law, such measures should address both quid pro quo and hostile environment sexual harassment. It requests the Government to provide detailed information on the measures taken in this regard.

Article 1(2). Inherent requirements. The Committee notes that section 7(2) of the new Labour Code 2016 provides that: “differences in the sphere of labour due to the inherent requirements of a particular type of labour requirements or special care of the state for persons in need of increased social protection (based on gender, age, physical disabilities, family responsibilities, social level and culture) do not constitute discrimination. The Committee requests the Government to indicate how section 7(2) of the Labour Code is applied in practice, for example by providing information on any cases in which these exceptions have been used.

Article 1(3). The Committee had previously noted that section 7 of the Labour Code prohibited discrimination in employment and requested the Government to indicate the manner in which section 7 of the Labour Code is implemented in practice to protect workers from discrimination in employment and occupation within the meaning of Article 1(3) of the Convention. The Committee notes that section 7 of the new Labour Code 2016 continues to prohibit discrimination in employment. Noting that the Government’s report is silent on this specific point, the Committee requests the Government to confirm that the prohibition covers access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.

Article 2. National policy with respect to grounds other than sex. The Committee requests once again the Government to provide information on the steps taken or envisaged to adopt and pursue a national policy on equality of opportunity and treatment in employment and occupation addressing the other grounds protected by the Convention, namely race, colour, national extraction, religion, political opinion and social origin, as required by Article 2 of the Convention.

Access of women to education and vocational training. The Committee recalls its previous comments, in which it requested the Government to provide information on the specific measures taken to improve women’s and girls’ educational opportunities, the results achieved, and to provide statistical information on the distribution of men and women in the various levels of education and training courses. The Committee notes the Government’s indication that there are 61 vocational technical secondary education institutions and one engineering college, which welcome a total of 23,143 students, including 4,805 girls. The Government further indicates that the State Programme 2007–2016 helped pay for 7,132 students to receive vocational training and that 74.5 per cent were women. It adds that in 2016, 120,000 girls finished university in the country in various fields of study. The Committee also notes, from the Government’s third periodic report submitted under the International Covenant on Civil and Political Rights (CCPR), that its ministries are encouraging girls to study in grade 10 and 11, and that it is making accommodation available and providing scholarships for female students in higher education (CCPR/C/TJK/3, 29 November 2017, paragraph 25). The Committee further notes, from the Government’s sixth periodic report submitted under the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), that various measures were taken to encourage girls to attend vocational training courses and encourage them to pursue higher education (CEDAW/C/TJK/6, 2 November 2017, paragraphs 35, 36, 97 and 99). From that report, the Government also indicates that girls’ attendance in grades 10 and 11 is increasing but that they represent only 35 per cent of the student population in higher education institutions. The Committee encourages the Government to continue to provide information on the specific measures taken to improve women’s enrolment in secondary and higher levels of education and to encourage their participation in a wider range of vocational training courses including in technical areas, and on the results achieved. The Government is also asked to continue to provide statistical information disaggregated by sex on the participation rates of men and women in the various types and levels of education and training courses.

Access of women to employment and occupation. In its previous comments, the Committee requested the Government to indicate the measures taken to improve access of rural women to employment and to address prevailing stereotypes on the role of women in the family and society. Noting the Government’s indication that a system of grants under the Government Committee on Women and Families had been established, with a focus on women in rural areas, the Committee had also requested the Government to provide information on the impact of this system on the situation of women working in rural areas. The Committee notes the adoption of a National Strategy to enhance the role of women and girls 2011–2020 and a State Programme on the education, selection and appointment of managerial positions in the Republic of Tajikistan from among capable women and girls 2007–2016. In this regard, it refers to its comments under the Equal Remuneration Convention, 1951 (No. 100), regarding the persistence of vertical and horizontal gender segregation in the labour market. It further notes, from the Government’s report to the CCPR that a number of large-scale public education and awareness-raising campaigns were carried out to eliminate gender stereotypes and promote equal rights of men and women in relation to family responsibilities (CCPR/C/TJK/3, paragraphs 27, 28 and 30). The Committee requests the Government to provide information on the results achieved by these education and awareness-raising campaigns with regards to combating the prevailing stereotypes on the role of women in the family and society, for example by providing statistical information, disaggregated by sex, on the distribution of men and women in the various sectors of the economy and occupations. The Committee once again requests the Government to provide information in relation to the impact of the system of grants under the Government Committee on Women and Families on the situation of women working in rural areas.

Article 3(a). The Committee requests the Government to describe the nature and extent of its activities in cooperation with workers’ and employers’ organizations to ensure and promote the observance of the national policy on equality.

Article 3(d). Civil service. The Committee previously noted that section 2 of the Law on Civil Service No. 223 of 5 March 2007 provides that “citizens shall have equal rights to be recruited by the civil service, irrespective of the nationality, race, gender, language, religion, and political views, social and proprietary status” but that it does not include the ground of “colour” and that it only covers recruitment. The Committee requested the Government to indicate whether it intended to: (i) insert the ground of colour in section 2, and (ii) extend the protection provided beyond recruitment. Further, after taking note that there were nearly twice as more men than women working in the public sector, the Committee requested the Government to provide information on the measures taken to promote equal opportunities between men and women in the civil service. The Committee notes the Government’s indication that in January 2017, there were 19,007 civil workers and that women represented 22 per cent of those workers. It further indicates that out of 5,670 managerial positions, 17.39 per cent were filled by women. Further, it notes from the Government’s report under the CCPR that, with the aim of promoting the employment of women in the public service, state bodies and self-governing authorities of villages have been implementing special measures when interviewing female candidates (CCPR/C/TJK/3, paragraph 22). In addition, in its report under the CEDAW, the Government indicates that the National Strategy of 2011–2020 provides for equal representation of women and men in the executive and representative bodies at all levels of governance and envisages the possibility of introducing quotas for women as temporary measures to ensure broader participation in the executive and representative bodies as well as modest quotas in the civil service (CEDAW/C/TJK/6, paragraph 80). The report further indicates that women currently make up 33.3 per cent of civil servants and that, in order to attract women in the civil service, 35 skills development courses were organized (paragraph 82). The Committee requests the Government to continue its efforts in promoting equal opportunities between men and women in the civil service with respect to all aspects of employment, and to provide information on the results achieved. It also urges the Government to provide information on how the observance of the national policy of equality of opportunity and treatment with respect to grounds – other than sex – is being ensured with respect to employment in the civil service. Noting the absence of information in this regard, the Committee requests the Government to indicate whether any consideration is being given to insert the ground of colour in section 2 of the Law on the Civil Service and to extend the protection provided beyond recruitment. Finally, the Committee requests the Government to continue to provide statistical information on the distribution of men and women in the various occupations and grades in the civil service.

Article 3(e). Vocational training and guidance and placement services. Other grounds. The Committee requests the Government to provide information on the activities of the Republican Employment Centre and the Ministry of Labour and Social Protection to promote equality of opportunity and treatment in vocational training and occupational guidance with respect to all groups protected by the Convention, including ethnic, national and religious minorities, and the manner in which the placement services provided ensure the application and observance of the national policy.

Article 4. Persons suspected of, or engaged in, activities prejudicial to the security of the State. The Committee requests the Government to provide full information on the manner in which this provision of the Convention is applied in practice, by indicating the provisions of its legislation which give effect to Article 4 of the Convention. It also requests the Government to provide information on the specific procedures establishing the right of appeal available to persons affected by this provision. The Government is also asked to supply information on all measures taken or contemplated to ensure that persons are not subjected to discrimination in their employment and occupation on the basis of their political opinion or ethnic origin.

Article 5. Protective measures. The Committee previously noted that sections 160 and 161 of the Labour Code 1997 prohibited employers from hiring women for underground work, heavy work and work in harmful conditions, as well as for work involving manual lifting in excess of the maximum permitted amounts, and from recruiting women for night work, except in certain sectors. The Committee also noted that section 3 of Law No. 89 of 2005 provides that special measures undertaken to protect the health of men and women are not considered discrimination. The Committee notes that section 216 of the Labour Code 2016 prohibits women from performing “heavy, underground and hazardous work” and that the Government is responsible for approving the list of works prohibited to women. Further, section 217 of the Labour Code 2016 prohibits night, overtime and shift works to women workers who have children under the age of 14 as well as other workers caring after children under the age of 14 without the mother, without their written consent. In its 2012 General Survey on the fundamental Conventions (paragraphs 838–840), the Committee stresses on the distinction to be drawn between special measures to protect maternity (in the strict sense), in which come within the scope of Article 5 of the Convention, and measures based on stereotypical perceptions of women’s capabilities and their role in society, which are contrary to the principle of equality of opportunity and treatment. Provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking account of gender differences with regard to specific risks to their health. Moreover, with a view to repealing discriminatory protective measures applicable to women’s employment, it may be necessary to examine what other measures, such as improved health protection of both men and women, adequate transportation and security, as well as social services, are necessary to ensure that women can access these types of employment on an equal footing with men. The Committee requests the Government to ensure that the special measures for the protection of women are limited to that which is strictly necessary to protect maternity (in the strict sense), and that these provisions do not impede access for women to employment and occupation. It also requests the Government to provide information on any consideration given to the adoption of accompanying measures aimed at, among others, improving health protection for men and women, security and the availability of adequate transport and social services to enable women to access all types of employment on an equal footing with men. The Committee also requests the Government to provide a copy of the list of works prohibited to women under section 216 of the Labour Code 2016. Finally, with regard to the prohibition of certain types of work contained in section 217, the Committee requests the Government to ensure that measures aimed at reconciling work and family are available to men and women with family responsibilities on an equal footing (and not only to men in the absence of a mother) and to provide specific information in this regard.

Enforcement. The Committee notes from the Government’s report under Convention No. 100 that labour inspectors carried out 691 inspections in 2016 and that 2,449 violations of occupational safety legislation were recorded, none of them involved findings of discrimination. The Government further states that no complaints were filed to the courts under section 7 of the Labour Code. The Committee recalls that where no cases or complaints are being lodged this likely indicates a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals. The lack of complaints or cases could also indicate that the system of recording violations is insufficiently developed (see 2012 General Survey, paragraph 870). The Committee therefore requests the Government to indicate measures taken or envisaged to raise awareness among the general public about the anti-discrimination legislation (on all the grounds prohibited by the Convention), and to examine whether the applicable substantive and procedural provisions, in practice, allow claims to be brought successfully. It once again requests the Government to provide information on the activities of the Coordinating Council on Gender Problems to monitor sex-based discrimination. The Government is asked to provide information on the number of inspections carried out during the reporting period, the number of violations found relevant to the Convention, and the corrective action taken or sanctions imposed. With regard to the Public Prosecutor’s Office, the Government is requested to supply specific information on the activities of this office in ensuring compliance with the Convention. It also requests the Government to supply copies of any decisions issued by courts of law or other tribunals involving questions of principle relating to the application of the Convention.